Copyright levies are likely to be paid for cloud services after all – this was recently denied by a German court. The Austrian Commercial Court in Vienna has now ruled against the German company Strato AG (Ref.: 43 Cg 29/19s - 34). The company must provide comprehensive information about the cloud services it has been offering in Austria since 1 October 2015. This applies in particular to private customers, the storage capacities provided, and the fee for the service.
Following the decision of the Munich Higher Regional Court in February against a cloud levy (Ref.: 38 Sch 60/22 WG e), it was already clear that this judgement would be of little help to the companies concerned. It does comply with the formal legal provisions in Germany; however, the question at issue here is hardly as clear-cut as the Munich judgement makes it appear. This is because the industry itself argues that the system of device-based levies, which also complies with European and national law, is outdated. One of the reasons for this is that content is increasingly being stored in the cloud instead of on storage devices and media. The fact that devices are also used for cloud storage is only a side note. At the same time, the ever-increasing use and distribution of digital content overall is well documented. Against this backdrop, the European Court of Justice (ECJ) has cleared the way for copyright levies on cloud storage as early as 2022. It seems as if the Munich judgement will only delay a development that is already emerging in Luxembourg and Vienna.
While the judgement from Vienna follows the development stringently, the Munich judgement increases the legal uncertainty for cloud providers. What should they do now? Affected companies should first consider the retroactive effect of the claims, which is by no means unusual in this area. In Austria, the judgement in question spans more than eight years! In addition, every provider can familiarise themselves with the long-established levy systems. This includes the tariff levels, their calculation, the scope of application, and the procedures for handling obligations. All of this can be used for risk assessment and planning, for the various levy systems in the affected countries.