AG Hogan Opinion in the case C-433/20 Austro-Mechana

On 23 September 2021, AG Hogan delivered his Opinion in the C-433/20 Austro-Mechana case which concerns the exception and limitation of copyright from Article 5(2)(b) of the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc Directive), specifically in regards to the private copying exception. The AG suggests that the private copyright exception applies in the cloud, but a separate levy may not be payable.

Austro-Mechana is a copyright collecting society, which has brought an action before the Commercial Court Vienna (Handelsgericht Wien) against Strato, which provides a service of virtual cloud storage. The Commercial Court Vienna started preliminary rulling procedure before the CJEU, in which the Advocate General proposed the following:
– The terms ‘reproductions on any medium’ in Article 5(2)(b) of the InfoSoc Directive includes reproduction based on cloud computing services provided by a third party.
– A separate levy or fee is not payable in respect of the reproduction by a natural person for their own personal purposes based on cloud computing services provided by a third party provided that the levies paid in respect of devices/media in the Member State in question also reflects the harm caused to the rightholder by such reproduction.