The Copyright Question

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Link to report

Do cloud recording services infringe copyright? This is the question that has been asked in a number of courts around the world since the services were first launched commercially more than five years ago.

On the one hand are the service providers, who argue that cloud video recorders (or "cloud PVRs") are in effect no different to in-home, hard drive-based set-top boxes, in that they simply enable the time-shifting by users of broadcast TV. On the other hand are the content owners, whose position has been that cloud PVR services operating without appropriate content licences amount to an infringement of their copyright.

Since the commercial launch of cloud PVRs, service providers and content owners have been engaged in litigation around the world, from the USA to Asia-Pacific. Where cloud PVR services are launched, litigation seems to follow soon after. Despite the different business models and technologies being used, all of the cases come down to one key question: do cloud PVR services infringe copyright? It isn't just the courts that are wrestling with this issue. We are also seeing governments seeking to legislate to bring clarity to the subject, although some of the technical nuances in play -such as how to apply private copying exceptions where the services provider as well as the customer may be said to be making copies - are proving difficult to address through legislation.

We round up here the case law from around the world to try to establish the state of play in the market, picking up on common issues emerging across jurisdictions and considering how these issues will shape the industry as content meets the cloud.

Cloud PVR Litigation: The Cablevision case in the USA

• Cloud PVR Litigation: The Wizzgo case in France

• Cloud PVR Litigation: The TvKaista case in Finland

• Cloud PVR Litigation: The Save.TV and Shift.TV case in Germany

• Cloud PVR Litigation: The Ental TV case in South Korea

• Cloud PVR Litigation: The Optus case in Australia

• Cloud PVR Litigation: The Aereo case in the USA

• Cloud PVR Litigation: The TV Catchup case in the UK

• Cloud PVR Litigation: The Bhaalu case in Belgium

• Catching up with the cloud- whats next for cloud PVR?