CJEU rules that private copying also applies in the cloud and warns against thinking that everything is communication to the public

· copyright,cloud,private copying

A few days ago the Court of Justice of the European Union (CJEU) rendered its judgment in C-433/20 Austro-Mechana, ruling that the notion of reproduction ‘on any medium’ extends to the cloud and, therefore, that private copying under Article 5(2)(b) of the InfoSoc Directive also applies in that context.

The judgment is in line with last year’s Opinion of Advocate General (AG) Hogan [here] and clarifies the treatment of private copying in the context of cloud computing, this being something that had been previously asked to the Court (in the context of the VCAST referral: here), but which the CJEU did not expressly address, preferring instead to focus on the qualification of providers of cloud-based storage facilities that give access to protected content to users based in territories for which no licence is in place.

Background

This referral from Austria was made in the context of litigation between copyright collecting society Austro-Mechana and cloud storage service provider Strato concerning the remuneration for private copying allegedly due by the latter.

Strato submitted that no remuneration was due since (1) it had already paid the required fee in Germany, where its servers are hosted and (2) users had also already paid the required compensation when purchasing the terminal equipment necessary to upload content to the cloud.

Following a dismissal of the action at first instance, an appeal was filed to the Higher Regional Court of Vienna. That court considered that, indeed, the earlier CJEU ruling in VCAST had not exhausted the question of private copying in the cloud. As such a referral to the CJEU appeared warranted to clarify: