# C_2023321EN.01000501.xml

| 11.9.2023 | EN | Official Journal of the European Union | C 321/5 |
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11.9.2023

EN

Official Journal of the European Union

C 321/5

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Judgment of the Court (First Chamber) of 13 July 2023 (request for a preliminary ruling from the Oberster Gerichtshof — Austria) — Ocilion IPTV Technologies GmbH v Seven.One Entertainment Group GmbH, Puls 4 TV GmbH & Co. KG

(Case C-426/21, (1) Ocilion IPTV Technologies)

(Reference for a preliminary ruling - Intellectual property - Copyright in the information society - Directive 2001/29/EC - Article 3 - Right of communication to the public - Article 5(2)(b) - ‘Private copying’ exception - Provider of an Internet Protocol television (IPTV) service - Access to protected content without the rightholders’ consent - Online video recorder - Replay function - De-duplication technique)

(2023/C 321/05)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Ocilion IPTV Technologies GmbH

Defendants: Seven.One Entertainment Group GmbH, Puls 4 TV GmbH & Co. KG

Operative part of the judgment

| 1. | Article 2 and Article 5(2)(b) of 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
  must be interpreted as meaning that the exception to the exclusive right of authors and broadcasting organisations to authorise or prohibit the reproduction of protected works does not cover a service offered by an operator of retransmission of online television broadcasts to commercial customers allowing, on the basis of a cloud-hosting solution or based on the necessary hardware and software made available on premises, a continuous or one-off recording of those broadcasts, on the initiative of the end users of that service, where the copy made by the first of those users to have selected a broadcast is made available, by the operator, to an indeterminate number of users who wish to view the same content. |
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1.

Article 2 and Article 5(2)(b) of 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

must be interpreted as meaning that the exception to the exclusive right of authors and broadcasting organisations to authorise or prohibit the reproduction of protected works does not cover a service offered by an operator of retransmission of online television broadcasts to commercial customers allowing, on the basis of a cloud-hosting solution or based on the necessary hardware and software made available on premises, a continuous or one-off recording of those broadcasts, on the initiative of the end users of that service, where the copy made by the first of those users to have selected a broadcast is made available, by the operator, to an indeterminate number of users who wish to view the same content.

| 2. | Article 3(1) of Directive 2001/29
  must be interpreted as meaning that the supply by an operator of retransmission of online television broadcasts to its commercial customer of the necessary hardware and software, including technical assistance, which enables that customer to allow its own customers to replay online television broadcasts, does not constitute a ‘communication to the public’ within the meaning of that provision, even if that operator is aware that its service may be used to access protected broadcasting content without the consent of the authors. |
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2.

Article 3(1) of Directive 2001/29

must be interpreted as meaning that the supply by an operator of retransmission of online television broadcasts to its commercial customer of the necessary hardware and software, including technical assistance, which enables that customer to allow its own customers to replay online television broadcasts, does not constitute a ‘communication to the public’ within the meaning of that provision, even if that operator is aware that its service may be used to access protected broadcasting content without the consent of the authors.

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(1)  
  OJ C 471, 22.11.2021.

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