The right of communication to thepublic in the cloud: An EUperspective
PROF. ESTELLE DERCLAYE
UNIVERSITY OF NOTTINGHAM
ALAI CONFERENCEKYOTO, 17 OCTOBER 2012

Legal framework
Art. 8 WCT, 10 and 14 WPPT
Art. 3 and 8(3) InfoSoc directive
Art. 14 and 15 E-Commerce Directive
Art. 3, 8, 9 and 11 Enforcement DirectiveCJEU case law on copyright enforcement
measures involving ISPs and hosts
Promusicae and Bonnier
Scarlet v SABAM and SABAM v Netlog
L’Oreal v eBay
Google France v. Louis Vuitton et al.
UPC Telekabel Wien

Implications for cloud computing providers(CCP)
If user communicates content to the public on a
CCP’s platform, RH may use notice and take down inart 14 ECD+ may also try to obtain injunction against the CCP,
but probably only against a specific act of aparticular client
CCP will then have to block the infringing content
posted by that user, arguably also for the future (asper L’Oréal).

Implications for cloud computing providers
Questions remain unanswered:must courts strike the balance between the different
fundamental rights of the 3 stakeholders in all the cases
where a permanent general injunction is not requested?
may courts issue stay-down orders? Unclear fromL’Oréal
CCP could be obliged to suspend or terminate a repeat
infringer’s account if the CCP carries on receiving
notifications from right holders // Facebook/YouTube
terms - proportionate under art. 3 Enforcement
Directive?

CJEU case law on communication to thepublicdistributing TV signals in hotels generally (SGAE)
providing, in the hotel’s bedrooms, apparatus (other thantvs and radios) and phonograms in physical or digitalformat so that the guests can hear them by means of theapparatus (Phonographic Performance v Ireland)transmitting broadcast works, via a television screen andspeakers, in a pub (Football Association PremierLeague)
distributing radio signals (music) in a dental practice(Società Consortile Fonografici (SCF) v. Marco DelCorsoCJEU case law on communication to thepublic: factors
1) public means an “indeterminate number of potential[television] viewers or [radio] listeners” and a “fairly large
number of people”
2) must be a new public i.e. “different from the public at which
the original act of communication of the work is directed”
3) public must be targeted and receptive4) public is present at the place of the operator’s (hotel, pub,dentist) transmission, but is not present at the place where thecommunication originates, that is to say, at the place of therepresentation or performance which is broadcast5) operator is intentionally distributing the works i.e. without
the intervention of the hotel, pub or dentist, the new publiccannot receive the sign3als
6) the operator’s communication is for profit+ the mere provision of physical facilities is not acommunication to the public.

CJEU case law on communication to thepublic: factors
Irrelevant factors:
1) whether the customers have or not switched the TV orradio on - it is sufficient that the apparatus and the signal orprotected content are provided (art. 3 Infosoc and art. 8
WCT say “in such a way that the persons forming thatpublic may access it2) which technique is used to transmit the signal3) whether the place where the communication takes placeis private or public

CJEU says that communication to the public must beinterpreted in accordance with international
conventions inc. WCT, WPPT

Case law convergence
There is convergence between the EU case law on article 14
ECD and on the right of communication to the public.
Under the right of communication to the public case law, therole of the operator must be that it intervenes to give access tothe content in full knowledge of the consequences of its
actions.
Under article 14 ECD case law, to benefit from the safe
harbour, the provider’s role must be ‘of a mere technical,
automatic and passive nature’, which implies that thatprovider ‘has neither knowledge of nor control over theinformation which is transmitted or stored’. In other words,
the question is whether the ISP’s role is neutral.
Arguably, intervention with knowledge on the one hand andhaving an active role or controlling on the other are the samething.

Scenario 1 = ‘private cloud’ (e.g. email service,music locker)
All is private unless:
User could use his music locker to animate a party or use
email account to email third party or derivative copyrightworks to a vast number of people => user liable, but CCP?
Factors 5 and 6 of the EU communication to the public
case law (intervention and profit) fulfilled?
CCP communicates works generated by the user, either
intentionally or negligently for instance leaking => art 14
ECD does not apply and CCP liable under art 3 InfoSocdirective (but email ≠ social networking if user gavelicence)Scenario 2 – ‘public cloud’ (e.g. YouTube)
YouTube – art 14 ECD but totally neutral? No, ifsuggests content as controls what user s see: factors
3 and 5 fulfilled // Google France
National case law diverges on liability in this case:some ruled sheltered by art 14 ECD, some didn’tOther difficulties CCP may face
Commission Staff Working Document “OnlineServices, including E-Commerce, in the Single
Market”
National case law interpreting ECD => uncertainties,owing to technological developments since theadoption of the ECD and owing to vagueness of someterms used in the ECD:
Unclear definition of intermediary activities in art. 12-14
Unclear conditions for benefiting from safe harbour in art. 1214
Variety of "notice-and-takedown" procedures
Extent of monitoring allowed under art. 15 is unclear

Conclusion
WIPO treaties + Beijing Treaty not outdated as suchbut may need clarifications and additions
UPC Telekabel Wien should shed more light on theextent of an obligation of ‘specific monitoring oraction’.
In EU, at the moment, whether CCP is liable will
depend on extent of involvement, activity, control
Different shades = All one can say is that the more
involved, the more likely the host will be liable

Conclusion
RH can use injunctions for present and future
infringements relating to a single or more repeat
copyright infringers acting on CCP’s platform.
But stay-down injunctions unlikely to be acceptable
In any case, many hosts’ terms already provide fortermination in case of repeat infringements.
The problems with these terminations are the dangerof censorship and lack of a possibility of defence
from the user.

Thank you for your attention
15

estelle.derclaye@nottingham.ac.uk
University of Nottingham, School of Law
http://www.nottingham.ac.uk/law/people/estelle.derclaye