The Exception for “Private Copying” under the Copyright Directive applies to Storing a Private Copy of a Protected Work in the Cloud

In the recent judgment of March 24, 2020, in case C-433/20, concerning the interpretative question of Directive 2001/29, which provides for the exception for private copying for reproductions made on “any medium,” the CJEU clarified that saving a “private copy” of a work in the cloud constitutes an actual reproduction of the work. Thus, the notion of “medium” includes the cloud or the “cloud computing” concept. Regarding the application of fair compensation to ensure compensation for the rights holder, the Court considered that the relevant legislation falls within the discretionary margin granted to national legislators. In general, the individual who makes the private copy, i.e., the user of cloud storage services, is required to finance the fair compensation, although it is not always easy to identify the end user. Therefore, Member States may choose to impose a levy for private copying on the manufacturer or importer of the server providing the cloud computing service, which will ultimately be borne by the private user.