On 13 July 2023, the EU Court of Justice (ECJ) issued its judgment in case C‑426/21 (Ocilion IPTV Technologies GmbH v Seven.One Entertainment Group GmbH, Puls 4 TV GmbH & Co. KG) and the Advocate General Collins issued an opinion in case C 260/22 (Seven.One Entertainment Group GmbH v Corint Media GmbH) on the application of the "private copying" exemption established by Article 5(2)(b) of Directive EU No. 2001/29 of 22 May 2001 (on the harmonisation of certain aspects of copyright and related rights in the information society, also known as "Infosec Directive") to the right of broadcasting organizations to the reproduction of broadcast fixations established by Article 2(e) of the same InfoSec Directive. In particular, the ECJ and the Advocate General established that, while the exception is in principle applicable to the right of broadcasters, national law cannot provide for a general application of the exception by excluding the right to fair compensation in cases where the copying causes broadcasters more than minimal harm. In particular, the right to fair compensation has been considered to subsist in relation to a cloud service offered by an operator of retransmission of online television broadcasts to commercial customers and entailing a continuous or one-off recording of broadcasts and the subsequent making available of the copy to an indeterminate number of users who wished to view the content. Both the ECJ and the Advocate General also clarified that the mere provider of the hardware and software could not be held as the subject accountable for the "communication to the public" at issue.
Originally published by August - September, 2023
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