The Austrian Higher Regional Court of Vienna has referred two questions to the CJEU on Article 5(2)(b) of the Copyright Directive (2001/29/EC) and the interpretation of the expression “on any medium”.

The case involves Austro-Mechana, an Austrian music rights collecting society, and whether it has the right to collect royalties from the Internet Service Provider, Strato AG, for the exploitation of the right of reproduction on storage media of copyright content stored on Strato’s cloud-based storage service.

Austrian law (implementing EU law) provides for a right to equitable remuneration enforceable against all those who, in the course of a commercial activity, place on the market within the national territory certain media intended for the reproduction and storage of copyright protected content. This legislation includes computer hard disks within its scope.

Strato (whose servers are based in Germany and who has already paid a copyright fee for its servers) argues that the legislation does not provide for remuneration for cloud services. It says that cloud services and physical storage media are not comparable, as no storage media are “placed on the market”: storage space is simply made available.

At first instance, the Austrian Commercial Court agreed, finding that Strato AG did not provide customers with storage media, but made storage capacity available as a service, online.

Austro-Mechana has appealed to the Higher Regional Court of Vienna, which has asked the CJEU whether or not the private use exception under Article 5(2)(b) applies to cloud-based storage media by being included in the expression “on any medium”. If so, the court asks whether Article 5(2)(b) applies where a work is by its nature likely to be reproduced for personal or private use by being stored “on a storage medium of any kind which is suitable for such reproduction and, in the course of a commercial activity, is placed on the market in the national territory”. To read the referral in full, click here.