22.11.2021

Official Journal of the European Union

C 471/16

(Case C-426/21)

(2021/C 471/24)

Language of the case: German

Referring court

Parties to the main proceedings

Appellant on a point of law: Ocilion IPTV Technologies GmbH

Respondents in the appeal on a point of law: Seven.One Entertainment Group GmbH, Puls 4 TV GmbH & Co. KG

Questions referred

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, (1) the operation of an online video recorder which is provided by a commercial provider and which

(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?

Is the term ‘communication to the public’ in Article 3(1) of Directive 2001/29 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?

(1) OJ 2001 L 167, p. 10.