EU: Cloud Storage of Broadcasts Requires Copyright Holders' Permission

Echoes Aereo Supreme Court decision

In an advisory decision that harkens back to U.S. broadcasters' copyright fight with Aereo, the Court of Justice of the European Union ruled Wednesday (Nov. 29) that copies of off-air broadcasts stored in the cloud for later online access by subscribers are public performances that require the permission of the copyright holders.

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That came after an Italian court asked for guidance in a dispute between VCAST and Italian broadcaster RTI.

The Supreme Court in 2014 ruled that similar service Aereo was providing a public performance that required copyright holders' permission, though the court declined to get into the issue of cloud storage per se.

The Italian court had preliminarily blocked VCAST, concluding, too, that it should be getting the permission of copyright holders or paying them a fee if required.

VCAST uses its own antennas to pick up and record RTI and other programming, stores it in the cloud, and lets subs access it on demand.

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The Italian court asked the EU Court to weigh in on whether "prohibiting a commercial undertaking [like VCAST] from providing private individuals with so-called cloud computing services for the remote video recording of private copies of works protected by copyright, by means of that commercial undertaking’s active involvement in the recording, without the rights holder’s consent" was compatible with EU law. The court said yes.

It ruled that, rather than being a private recording once removed and subject to the private recording copyright exception, cloud storage by a third party of those off-air signals was a public performance.

"[T]he service provider at issue in the main proceedings [VCAST] records programmes broadcast and makes them available to its customers via the Internet," the court said. Further, "it is evident that the sum of the persons targeted by that provider constitutes a ‘public’ within the meaning of the case-law," adding: "It follows that, without the rights holder’s consent, the making of copies of works by means of a service such as that at issue in the main proceedings could undermine the rights of that rights holder." Ergo, the Italian court is advised that it is precluded from "permitting a commercial undertaking to provide private individuals with a cloud service for the remote ecording of private copies of works protected by copyright, by means of a computer system, by actively involving itself in the recording, without the rights holder’s consent."

“NAB and television broadcasters across the globe appreciate the Court’s decision to protect the rights of content creators. This ruling reaffirms that theft of programming content will not be tolerated," said National Association of Broadcasters EVP Dennis Wharton.