the matter at hand

Ocilion IPTV Technologies GmbH (“Ocilion”) provides an Internet television service (“IPTV service”) to commercial customers such as network operators, telephone companies and hotels (“the network operators”). The service is offered either (i) as an on-premises solution, in which Ocilion makes the necessary hardware and software available to those network operators with technical support, or (ii) as a cloud-hosting solution, directly managed by Ocilion.  

Seven.One Entertainment Group GmbH and Puls 4 TV GmbH & Co are TV broadcasting companies that hold retransmission rights over TV programs made available via the IPTV service (“Seven.One”).  

Seven.One brought an application for interim measures seeking to prohibit Ocilion from making the content of their programmes available to its customers or to reproduce or have third parties reproduce such programmes, without their consent. Since this appeal was granted at first instance and upheld on appeal, Ocilion brought an appeal before the Oberster Gerichtshof (Supreme Court, Austria), the referring court. The referring court basically asked the ECJ, if Ocilion could rely on the private use exception under Article 5(2)(b) of Directive 2001/29, and whether its on-premises solution constituted a communication to the public under Article 3(1) Directive 2001/29.  

the judgment of the ecj

By its first question, the referring court asks, in essence, whether a service, such as that offered by Ocilion, is capable of falling within the ‘private copying’ exception provided for in Article 5(2)(b) of Directive 2001/29. Ocillion offers as an operator of retransmission of online television broadcasts a service to commercial customers allowing, on the basis of a cloud-hosting solution or based on a server made available on premises, and on the initiative of the end users of that service, a continuous or one-off recording of those broadcasts, where the copy made by the first of those users to have selected a broadcast is made available, by Ocilion, to an indeterminate number of users who wish to view the same content.

Member States may provide for exceptions or limitations in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation.

As regards the question whether a service such as that at issue in the main proceedings constitutes a ‘reproduction’ for the purposes of Article 5(2)(b) of that directive, the ECJ held that that concept must be construed broadly. More specifically, in respect of the expression ‘reproductions on any medium’, the ECJ refers to its judgments in Austro-Mechana (C‑433/20) and VCAST (C-265/16) that made clear that it covers the saving, for private purposes, of copies of works protected by copyright on a server on which storage space is made available to a user by the provider of a cloud-computing service and that 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.

In essence the question is whether the finding of the case law VCAST (C-265/16) can be applied to a service such as the one offered by Ocilion. In short, VCAST offers a B2C service for the remote recording of private copies by actively involving itself in the recording and without the rightsholder’s consent.

Ocilion offers its service in the context of its commercial activity (B2B) and therefore cannot be considered as making a copy falling within the private copying exception (paragraph 37-39).  

Ocilion claims that its IPTV service is restricted to providing a tool that allows end users to replay television programs at their own discretion and solely for private purposes. Additionally, the company asserted that the de-duplication technique employed does not unfairly undermine the legitimate interests of exclusive rightsholders (paragraph 40).

The ECJ countered Ocilion’s argument on multiple fronts. The ECJ first states that the services offered by Ocilion is characterised by its dual functionality: simultaneous retransmission of IPTV programmes and their recording (paragraph 42). Secondly the ECJ state that the “de-duplication technique at issue leads to the making of a copy that, far from begin available exclusively to the first user, is intended to be accessible, through the system offered by the service provider, to an indeterminate number of end users, themselves customers of the network operator to which that service provider makes that technique available” (paragraph 45).

Therefore, Ocilion services, which allow access to a reproduction of a protected work to an “indeterminate number of recipients” for commercial purposes, is not covered by the ‘private copying’ exception (paragraph 46) and this cannot be invalidated by the need to comply with the principle of technological neutrality (paragraph 47 and 50).   

With regard to the second question the ECJ states that Ocilion itself does not provide end users access to protected work. Although Ocilion provides network operators with the necessary hardware and software for that purpose, these network operators are the ones who grant end users access to protected works. (paragraph 63). Furthermore, the ECJ states that Ocilion does not play an “indispensable role” in providing such access, with the result that it cannot be deemed to have performed an act of communication to the public. (paragraph 64).

Therefore, with regard to the second question, the ECJ concludes as follows: “that 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” (paragraph 67).