Digital Law Up(to)date: Application of the private copy exception to cloud computing

The work of interpretation of the Court of Justice of European Union (CJEU) in the field of copyright has been important since the adoption of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society. A new decision confirms one of the trends in this case law: the application of the Directive in the digital environment. On 24 March 2022, the European judges considered that the private copy exception fully applies to copies of protected works placed on a server in a storage space made available to a final user by the provider of a cloud computing service (C-433/20, Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH v. Strato AG).

Three main steps are to be found in the reasoning of the CJEU:

1. Firstly, it admitted that the saving of copies in a cloud storage space constitutes a “reproduction”, for the purposes of article 5(2)(b) of the directive. The concept of “reproduction” must be construed broadly. The CJEU stated that the upload of a protected work to a cloud storage space is a “reproduction” and that the download of a work that was previously uploaded to the cloud is also a “reproduction”.
2. Secondly, the concept of “any medium”, referred in the same provision, refers to all media on which a protected work may be reproduced, including servers such as those used in cloud computing.
3. Thirdly, the CJEU validated a national law that does not make the providers of storage services in the context of cloud computing subject to the payment of fair compensation in respect of the unauthorised saving of copies of copyright-protected works by natural persons, in so far as that legislation provides for the payment of fair compensation to the rightholders.

This article was co-authored by Edouard Cruysmans in his capacity of Professional Support Lawyer at Stibbe.