Opinion of the Advocate General — ECLI:EU:C:2022:999
Date: 2022-12-15
Language of the case: German
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-426/21 – 1 
Case C-426/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
13 July 2021 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
27 May 2021 
Applicants (respondents in the appeal on a point of law before the OGH): 
Seven.One Entertainment Group GmbH 
Puls 4 TV GmbH & Co. KG 
Defendant (appellant on a point of law before the OGH): 
Ocilion IPTV Technologies GmbH 
  
Subject matter of the main proceedings 
Copyright – Online video recorder – Exception applicable to private copying – 
Applicability – Concept of ‘communication to the public’ – Interpretation 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of Directive 2001/29; Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Is a national provision compatible with EU law if it permits, on the basis of 
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 (OJ 2001 L 167, p. 10), the operation of 
an online video recorder which is provided by a commercial provider and which 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-426/21 
 
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a) by virtue of the deduplication process implemented as a technical means, 
does not create an independent copy of the programmed broadcasting content for 
each recording initiated by a user, but, in so far as the content in question has 
already been stored on the initiative of another user who was the first user to 
record that content, merely makes a referencing – in order to avoid redundant 
data – which allows the subsequent user to access the content already stored; 
b) has a replay function via which the entire television programme of all 
selected channels is recorded around the clock and made available for retrieval 
over a period of seven days, provided that the user makes a one-off selection to 
that effect in respect of the channels concerned by ticking a box in the menu of the 
online video recorder; and 
c) also provides the user with access (either embedded in a cloud service of the 
provider or as part of the complete on-premises IPTV solution provided by the 
provider) to protected broadcasting content without the consent of the 
rightholders? 
2. Is the term ‘communication to the public’ in Article 3(1) 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 (OJ 2001 L 167, p. 10) to be interpreted as meaning that such 
communication is carried out by a commercial provider of a complete (on-
premises) IPTV solution, in the context of which it provides, in addition to 
software and hardware for receiving TV programmes via the internet, technical 
support and makes adjustments to the service on an ongoing basis, but that service 
is operated entirely on the customer’s infrastructure, if the service provides the 
user with access not only to broadcasting content whose online use has been 
authorised by the respective rightholders, but also to protected content for which 
rights clearance has not been obtained, and the provider 
a) can influence which TV programmes can be received by the end user via the 
service, 
b) is aware that its service also enables the reception of protected broadcasting 
content without the consent of the rightholders, but 
c) does not advertise that possibility of unauthorised use of its service, thereby 
creating a major incentive to purchase the product, but rather advises its customers 
at the time of conclusion of the contract that they must take care of the granting of 
rights on their own responsibility, and 
d) does not provide, through its activity, special access to broadcasting content 
which, in the absence of its intervention, could not be received or could be 
received only with difficulty? 
OCILION IPTV TECHNOLOGIES 
 
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Provisions of EU law relied on 
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: Articles 2, 3 and 5. 
Provisions of national law relied on 
Urheberrechtsgesetz (Law on copyright; ‘the UrhG’): Paragraphs 15, 17, 18, 18a, 
42, 59a and 76a. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicants are television broadcasters. The defendant offers complete IPTV 
solutions (internet television in a closed network) on an individual basis to 
commercial customers (network operators, hotels, stadiums, etc.). In addition to 
content services in the form of channel packages, those solutions also include an 
online video recorder which enables time-shifted television, either by making 
individual recordings or by recording entire series of programmes. The service 
includes, inter alia, a replay function whereby broadcasting content aired up to 
seven days ago can be viewed again. The online video recorder only ever records 
content if an end user has programmed it to do so. The replay function must also 
be activated by the end user. On the basis of that programming, the system makes 
the recordings in a fully automated manner and stores them, in principle, for each 
recording user in a separate file (single copy). However, a deduplication process 
runs in the background – in a manner not visible to the end user – and serves to 
prevent several copies of broadcasting content from being created when 
recordings are programmed identically for several customers; rather, the first copy 
made is retained and can be accessed by all end users who have programmed the 
same recording, via a reference specifically assigned to them. The copy is deleted 
only when the last user has cancelled the programming of the recording 
concerned. 
2 The defendant’s complete IPTV solution is available in two variants, namely in 
the form of a cloud solution and in the form of an on-premises solution. 
3 The cloud solution is hosted directly by the defendant (that is to say, operated on 
its servers). 
4 Within the framework of the on-premises solution, the defendant provides 
network operators with hardware and software together with technical support 
(ongoing troubleshooting and configuration support for the service) and concludes 
framework agreements with those operators, under which the latter use the IPTV 
system solutions to provide, themselves or on behalf of a contractual partner, 
IPTV services to end customers, and, in doing so, are themselves responsible for 
obtaining the corresponding cable retransmission rights and content rights. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-426/21 
 
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According to the content of those framework agreements, the network operator 
must ensure that it holds sufficient rights for all content that it distributes or holds 
available (by means of the technical solutions provided by the defendant). In 
addition, the defendant’s customer undertakes to ensure, on its own responsibility 
and at its own expense, that it holds sufficient licences and cable retransmission 
rights for the content (for example, TV programmes) and forms of use as well as 
for the other works which it distributes and makes available by means of the IPTV 
system. That framework agreement covers not only linear (analogue or digital) 
services but also non-linear services (such as internet TV). 
5 The TV programmes provided and broadcast by the applicants are included in the 
channel portfolio of both the defendant and various network operators which use 
the defendant’s IPTV product as an on-premises or cloud solution. The defendant 
states to its customers that it has direct licensing agreements with broadcasting 
groups. The applicants did not give their consent to retransmission via internet 
streaming. 
6 The applicants request that the defendant be prohibited, by means of an 
interlocutory injunction, from (a) communicating to the public, (re)broadcasting 
or making available the applicants’ television programmes as a live stream 
without their consent, in particular within the framework of the defendant’s cloud 
solution or comparable offerings; (b) providing to its customers services or 
products enabling them to communicate to the public, (re)broadcast or make 
available the applicants’ television programmes as a live stream without their 
consent, in particular within the framework of the on-premises solution or 
comparable offerings; (c) reproducing the applicants’ television programmes, or 
having them reproduced by third parties, by means of storage, or making copies of 
the television programmes available to the customers of the defendant’s cloud 
service or their customers for the purpose of making (private) copies, without the 
consent of the applicants, in particular through offerings such as the online video 
recorder provided within the framework of the defendant’s cloud solution or 
comparable offerings; and (d) providing to its customers services or products 
enabling them to reproduce the applicants’ television programmes or to have them 
reproduced by third parties, by means of storage, or to make copies of the 
television programmes available to end customers for the purpose of making 
(private) copies, without the consent of the applicants, in particular in the context 
of the on-premises solution or comparable offerings. 
7 The court of first instance granted the application with the exception of point a). 
8 The appellate court (that is to say, the court of second instance) granted the 
application in its entirety. 
9 That decision is challenged by the defendant, which now seeks the dismissal of 
the application in its entirety before the Oberster Gerichtshof (Supreme Court). 
OCILION IPTV TECHNOLOGIES 
 
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Essential arguments of the parties in the main proceedings 
10 The applicants take the view that the defendant uses, within the online video 
recorder, a process which runs via a ‘master copy’. They submit that broadcasting 
content is not stored for each end customer individually and in response to his or 
her order in an area controlled by that end customer; rather, that first master copy 
created by the defendant can be accessed by all end customers on demand. As a 
result, the defendant’s service offers end customers the possibility of watching the 
applicants’ programmes as often as they like on a time-shifted basis for up to 
seven days via the replay function. They claim that the online video recorder and 
the replay function are not covered by the exception provided for by copyright law 
in respect of private copying. With regard to the on-premises solution, there is no 
communication to the public within the meaning of Article 3(1) of Directive 
2001/29. 
11 Against that, the defendant counters that the reproductions made by its service are 
permissible private digital copies within the meaning of Paragraph 42 of the 
UrhG. It submits that end customers are provided only with an infrastructure, 
which includes a data storage means, with the result that only the end customers 
can start and stop individual recordings. The defendant states that it does not have 
organisational autonomy in respect of the copying function, and does not create a 
master copy relevant under copyright law. The deduplication process running in 
the background serves only to optimise resources. As a result, only the system of 
the local video recorder or hard disk recorder is used. According to the defendant, 
its customers’ use of the functionalities of its on-premises solution is outside its 
legal sphere of influence. The defendant itself provides only the necessary 
hardware and software and has no control, even indirectly, over the use of its 
system. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The first question seeks clarification as to whether the reproductions of 
broadcasting content that are made by means of the online video recorder offered 
by the defendant fall under the exception that applies to private copies under 
Paragraph 42(4) of the UrhG (‘private copy exception’). 
13 The referring court proceeds on the assumption, in line with the prevailing view 
taken in the legal literature in Austria and Germany, that the commercial operation 
of an online video recorder which ultimately serves to hold broadcasting content 
in order to make it available to end users cannot fall under the private copy 
exception, irrespective of the question of who formally initiated the recording 
process. However, the question cannot be answered so clearly that an ‘acte clair’ 
exists. 
– The second question seeks clarification as to whether, in the context of the on-
premises complete solution provided by it, the defendant is liable for 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-426/21 
 
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communication to the public of protected broadcasting content within the 
meaning of Article 3(1) of Directive 2001/29. 
14 That would be the case if the knowing facilitation of the unlawful acts of third 
parties (in casu, the copyright infringements) were sufficient. 
15 If, however, such liability additionally requires a specific element of intent, the 
defendant would not be liable for communication to the public.