Every transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question”.

This is one the main principles ensuing from the Court of Justice of the European Union (CJEU) in the its recent decision of 29 November 2017 (Case C-265/16).

The decision was issued in response to a reference from an Italian Court which asked whether it is possible to provide a service enabling consumers to have free-to-air television content received remotely (to a device) and then directly recorded onto a personal cloud storage space, without first obtaining the rightholder’s authorisation.

The referral request above was made in the framework of proceedings between VCAST Limited (a UK company which, via the internet, makes a video recording system for terrestrial television programmes available to its customers) and Reti Televisive Italiane s.p.a. (the largest commercial broadcaster in Italy).

It is evident the Italian broadcasting company had an interest in obtaining a decision which confirmed the unlawfulness of such a service since the UK entity, without itself incurring costs, was obtaining commercial advantage in providing this service on works produced by the Italian company.

Assessing the lawfulness of the service at issue, the Court ruled that VCAST was indeed recording broadcast programmes and makes them available via the internet to its customers.

According to the Court it is evident that the sum of persons targeted by that provider constitutes a “public” (which could be defined as “a fairly large number of persons”, see decision of 31.5.2016 rendered in the case C-117/15) as well as the fact that VCAST’s transmission were made using a different means of transmission.

On this basis the Court held that VCAST’s transmissions constituted communication to a different public and must therefore receive prior authorisation from the respective rightholder.

The decision is based on the essential assumption that VCAST makes the programmes broadcast by the Italian company available using a different means of transmission (the web rather than digital terrestrial transmission).

This suggests that the decision would have been different had VCAST picked up the programmes directly from live streaming web services provided by all the major broadcasting companies. 

In this case, the means of transmission used by the recording service provider, in order to pick up the TV programmes, would have been considered the same as that used by the broadcasting company (in both cases the web) and it would have been more difficult to conclude that there was a new act of communication requiring the rightholder’s authorisation.