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Private copying exception in the context of online content storage

On March 24 2022, the Court of Justice of the European Union (CJEU) issued its preliminary ruling on the extent of the private copying exception in the context of cloud computing (see CJEU, Case C‑433/20, Austro-Mechana v. Strato AG). The ruling serves as a helpful reminder that an exclusive right of copyright owners to reproduction of their work, as expressed by Directive 2001/29/EC (the InfoSoc Directive), extends to the cloud and, therefore, the private copying exception also applies in that context. Additionally, the ruling reaffirms that where EU member states decide to implement the private copying exception, they need to make sure that fair compensation is payable to rightsholders; however the form taken by that compensation is left at the entire discretion of each member state.

In this article, we consider the findings in this decision and its main implications for tech and media companies storing content online.

Legal framework

Article 2 of the InfoSoc Directive requires that member states shall provide to owners of copyright works the exclusive right to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part. However, article 5(2)(b) adds that member states may provide for exceptions or limitations to the reproduction right “in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation.”