Cloud services do not have to pay a copyright levy, the Munich Higher Regional Court has ruled. The court made this decision following an action brought against Dropbox by the Zentralstelle für private Überspielungsrechte (ZPÜ) and the collecting societies it represents (case no.: 38 Sch 60/22 WG e). According to the judgement, cloud services such as the file host are not reproduction devices or storage media subject to remuneration within the meaning of the German Copyright Act (UrhG). This only includes devices such as hard drives or SD cards. The court therefore dismissed ZPÜ’s claim and followed the stand taken by Dropbox.
Unfortunately, the judgement does not help to clarify a controversial issue. Instead, this raises questions that need to be answered in all countries. The position of the collecting societies on the cloud levy has always been clear. It corresponds to a judgement from 2022 by the European Court of Justice (ECJ) in the case of Austrian collecting society, Austro-Mechana, against the provider Strato. According to this judgement, remuneration claims for private copies also exist in principle in the cloud. With the judgement of the Munich court, companies are now faced with the question of how the situation should be assessed.
The position in favour of a cloud levy appears conclusive. After all, there is ample evidence that individual users are hardly storing any content locally, or rather storing less and less. At the same time, the use and distribution of digital content is increasing rapidly. The consumption of audio streams alone has increased 35-fold in Germany within ten years. However, instead of storing content on copying devices or storage media, which are currently subject to remuneration, users store content in the cloud and use streaming services. The devices used to access the services – mobile phones, tablets or PCs – hardly provide any information about the extent of use. For a long time, the local storage capacity, which is hardly required today, was a reliable indicator. In addition, the annual reports of many collecting societies across Europe for 2023 are available, which show declining revenues from device levies.
It is therefore an absolutely logical development that the levy systems are constantly being adapted to new products, new device features, user behaviour and also to parallel developments such as the expansion of data transmission speeds and bandwidths. This adaptation always lags behind the technology anyway. Rights holders and their representatives therefore welcome it when they are not hindered by judgements such as that of the Munich Higher Regional Court. They see the judgement as an opportunity to now implement cloud remuneration with clear legal regulations. This regulation must enable a functional and technology-neutral interpretation to achieve and permanently secure appropriate remuneration.
