Opinion of the Advocate General — ECLI:EU:C:2017:649
Date: 2017-09-07
Language of the case: Italian
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Third Chamber), 29 November 2017 1. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Exhaustive harmonisation — Assessment of the compatibility of national legislation in the same area on the sole basis of the harmonising measure (European Parliament and Council Directive 2001/29) 2. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Private copying exception — National legislation permitting the copying of works protected by copyright, by means of cloud computing services, without the rightholder’s consent — Unlawful (European Parliament and Council Directive 2001/29, Recital 23 and Arts 3 and 5(2)(b)) 1. See the text of the decision. (see para. 26) 2. 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, in particular Article 5(2)(b) thereof, must be interpreted as precluding national legislation which permits a commercial undertaking to provide private individuals with a cloud service for the remote recording of private copies of works protected by copyright, by means of a computer system, by actively involving itself in the recording, without the rightholder’s consent. It follows from Article 3 of Directive 2001/29 that any communication to the public, including the making available of a protected work or subject matter, requires the rightholder’s consent, given that, as is apparent from recital 23 of that directive, the right of communication of works to the public should be understood in a broad sense covering any transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. In the present case, the service provider at issue in the main proceedings records programmes broadcast and makes them available to its customers via the Internet. In the first place, it is evident that the sum of the persons targeted by that provider constitutes a ‘public’ within the meaning of the case-law cited in paragraph 45 of the present judgment. In the second place, the original transmission made by the broadcasting organisation, on the one hand, and that made by the service provider at issue in the main proceedings, on the other, are made under specific technical conditions, using a different means of transmission for the protected works, and each is intended for its public (see, to that effect, judgment of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 39). The transmissions referred to thus constitute communications to different publics, and each of them must therefore receive the consent of the rightholders concerned. (see paras 40, 46-49, 54, operative part)