VCAST Limited v RTI SpA.
Date: 2017-11-29
26


With regard to the questions asked in so far as they concern the ‘Treaty’, it must be recalled that, according to the settled case-law of the Court, where a matter is regulated in a harmonised manner at EU level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure (see, inter alia, judgments of 13 December 2001, DaimlerChrysler, C‑324/99, EU:C:2001:682, paragraph 32; of 24 January 2008, Roby Profumi, C‑257/06, EU:C:2008:35, paragraph 14, and of 1 October 2009, HSBC Holdings and Vidacos Nominees, C‑569/07, EU:C:2009:594, paragraph 26).
32


Concerning Article 5(2)(b) of Directive 2001/29, it must be pointed out that, according to the settled case-law of the Court, the provisions of a directive which derogate from a general principle established by that directive must be interpreted strictly (judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 22 and the case-law cited). It follows that Article 5(2)(b) must be given such an interpretation.
33


The Court has also held that copying by natural persons acting in a private capacity must be regarded as an act likely to cause harm to the rightholder concerned, where it is done without seeking prior authorisation from that rightholder (see, to that effect, judgment of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraphs 44 to 46).
34


In addition, the Court has held that, while Article 5(2)(b) of Directive 2001/29 must be understood as meaning that the private copying exception prohibits the rightholder from relying on his exclusive right to authorise or prohibit reproductions with regard to persons who make private copies of his works, that provision must not be understood as requiring, beyond that express limitation, the copyright holder to tolerate infringements of his rights which may accompany the making of private copies (see, to that effect, judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 31).
35


Last, it follows from the case-law that, in order to rely on Article 5(2)(b), it is not necessary that the natural persons concerned possess reproduction equipment, devices or media. They may also have copying services provided by a third party, which is the factual precondition for those natural persons to obtain private copies (see, to that effect, judgment of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 48).
41


In that respect, the Court has already held that the concept of ‘communication to the public’ includes two cumulative criteria, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’ (judgment of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 37).
42


That said, it must be stated, first, that the concept of an ‘act of communication’ refers to any transmission of the protected works, irrespective of the technical means or process used (judgment of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 38).
43


Moreover, 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 (judgment of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 39).
44


Second, in order to fall within the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, it is also necessary, as noted in paragraph 41 of the present judgment, that the protected works actually be communicated to a ‘public’ (judgment of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 40).
45


In that connection, it follows from the Court’s case-law that the term ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (judgment of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 41).
48


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).
50


In those circumstances, it is no longer necessary to examine whether the publics targeted by those communications are identical or whether the public targeted by the service provider at issue in the main proceedings constitutes a new public (see, to that effect, judgment of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 39).