Cloud Uploads and Copyright Infringement: the case

ECJ Judt. v. 24.03.2022, Case C-433/20

If a private individual uploads a copyright-protected work to a cloud, this person is legally speaking is making a copy – and thus infringing copyright. However, this can be justified by the exception of private copying, according to the ECJ.

If a person uploads a copyrighted work to a cloud for private purposes, this may constitute a private copy. The infringement of copyright would then be justified. However, member states must ensure that there is fair financial compensation for this. This was decided by the European Court of Justice (ECJ) on Thursday in a case from Austria (judgment of 24 March 2022, Case C-433/20).

The background to the ECJ ruling is the lawsuit filed by a copyright collecting society comparable to GEMA in Germany. Among other things, it administers the rights of use and also the remuneration claims of the rights holders owed on the basis of the exception for “private copies” in a fiduciary capacity. According to the exception for private copying, natural persons may reproduce works of authors for private use. In Germany, this exception is regulated in Section 53 UrhG.

The company wanted to enforce this right to remuneration against the German AG before the Commercial Court in Vienna. The AF offers media storage via cloud computing. However, the Commercial Court in Vienna dismissed the claim for remuneration because Strato did not provide its customers with storage media, but only with internet-based storage.

The appeal then ended up before the Vienna Higher Regional Court. The court wants to know from the ECJ whether the storage of content in the context of cloud computing falls under the exception for private copying in the sense of Article 5(2)(b) of Directive 2001/29.

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