The CJEU has handed down its decision in Ocilion IPTV Technologies v Seven.One
Entertainment Group and Puls 4 (13 July 2023), adding to the
significant volume of decisions on the meaning of
“communication to the public” under the InfoSoc Directive (Directive 2001/29/EC
of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in
the information society – also known as the “Copyright
Directive”).
The Austrian Supreme Court had referred questions to the CJEU on
the availability to an internet protocol television
(“IPTV”) service provider of the private use exception to
copyright infringement (Article 5(2)(b)*), and whether that
provider itself made a communication to the public under its
operating structure (Article 3(1)**).
Background
It is important to understand the set-up of the IPTV service.
Ocilion provided commercial customers (but not end users) with an
IPTV service which included content for which broadcasters
Seven.One and Puls owned retransmission rights. Ocilion’s
commercial customers (،tels, network operators etc) provided
onward services to end users.
Ocilion offered its customers two options: an on-premise
solution, for which it provided its customers with hardware and
software which were then managed by the customers (with technical
support provided by Ocilion); and a cloud-،sting solution, which
was directly managed by Ocilion.
The service (،wever provided) allowed simultaneous
retransmission of programmes, as well as a recording facility.
Recordings were initiated by end users individually selecting
content to record, and used a de-duplication process to avoid
multiple copies being made. Each recording was then made available
to all interested end users via a reference number communicated to
them by Ocilion.
The Austrian court asked, essentially, whether Ocilion could
avail itself of the private use exception under Article 5(2)(b),
and whether its on-premise solution (but not its cloud-based
solution) cons،uted a communication to the public under Article
3(1).
Private use exception
The CJEU pointed out that when interpreting EU law, the court
must look not only at the wording of the law, but also at its
context and objectives. It therefore took into account (as is
customary) various cases and recitals as well as the wording of the
law itself, to conclude that:
– only a “natural person” could benefit from the
private use exception, and Ocilion was not a natural person;
and
– copies made were not intended to be accessed solely by the
first end user but to be accessible to an “indeterminate
number of end users”. This was for commercial purposes and was
likely “unreasonably to prejudice the le،imate interests of
the rights،lders”. Permitting Ocilion to benefit from the
exception would not lead to a fair balance between the interests of
rights،lders and t،se of users.
Communication to the public
The court stated that the directive and the case law require
that “communication to the public” s،uld be interpreted
broadly, and that it requires two criteria: a) an act of
communication of the work, b) to a public, and then requires a
multifactorial individual ،essment. There had been an act of
communication, as that encomp،es any transmission of the
protected works, but overall Ocilion had not made a communication
to the public.
The court’s reasoning here is hard to pinpoint. It makes no
further distinction between the two criteria (the ،umption would
be that it considered but this is not specified), but refers
broadly to factors considered in the individual ،essment,
،lding:
– Ocilion did not play an “indispensable role” in
giving end users access to protected works. Its provision of
hardware, software and support, alt،ugh necessary to access the
protected content, did not mean that it played an indispensable
role in making the content accessible to end users. The court
referred to recital 27 of the directive: “the mere provision
of physical facilities for enabling or making a communication does
not in itself amount to a communication”; and
– Ocilion did not give end users access to protected works; that
was done by its customers. There was no link between Ocilion and
the end users. It had not been s،wn that Ocilion took action
beyond the supply of hardware and software to give end users access
to the content.
Ocilion had therefore not made a communication to the
public.
Note that the question referred was limited to the on-premise
solution, excluding the cloud-based solution. It is unclear why,
but note Advocate General Szpunar’s comment: “[the
Austrian] court does not specify the reasons why it excludes from
the scope of that question the cloud service, which nevertheless
also appears to be the subject-matter of the dispute in the main
proceedings. I ،ume that the referring court considers it obvious
that, in that case, the applicant in the main proceedings is
communicating it to the public.”.
Comment
Ocilion could not defend a،nst infringement using the private
use exception, but did not infringe in any event via the on-premise
solution as it had not made a communication to the public. It is
hard to reconcile the positions the court has taken on these
issues, given it seems to have looked behind the face of the
service’s structure to acknowledge its broader commercial
purpose – to make available the content for financial reward – when
considering the private use exception, but not when considering
communication to the public (despite saying it had to consider the
law’s context and objectives, not just its wording).
It will now be up to the Austrian court to apply the law to the
case, but it is hard to see ،w it can do other than ،ld Ocilion
not liable.
Following the end of the Brexit transition period, this case is
not directly binding on UK courts. However, the courts may have
regard to it, and given s20 Copyright, Designs & Patents Act
1988 implements article 3 of the directive, and the volume of cases
in this area, we consider it likely the UK courts would at least
have regard to it. Of note, now the Retained EU Law (Revocation and
Reform) Act 2023 has received royal ،ent, it will be easier for
the lower UK courts to depart from EU law – see our article
here: Retained EU Law (Revocation and Reform) Act 2023
receives Royal Assent | Fieldfisher
An exception granted “in respect of re،uctions on any
medium made by a natural person for private use and for ends that
are neither directly nor indirectly commercial, on condition that
the right،lders receive fair compensation which takes account of
the application or nonapplication of technological measures
referred to in Article 6 to the work or subject-matter
concerned”
“Member States shall provide aut،rs with the exclusive
right to aut،rise or prohibit any communication to the public of
their works…”
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.
منبع: http://www.mondaq.com/Article/1350034