In principle, the author of a work protected by copyright has an exclusive right to reproduce or copy it. In Austria, however, anyone has the right to make copies of such works for private use. Originally, the
legislator had scenarios in mind where people recorded music from the radio with their stereo system and a blank tape cassette, or recorded films via a video recorder.

Collecting societies collect a levy as compensation for this private copying right. Formerly called the blank tape levy, this levy has since been extended to other storage media by the courts and by
 legislative amendments due to changes of user behaviour. It is therefore now referred to as the storage media levy. This also covers computer hard disks and storage media on mobile devices such as cell phones. After all, the majority of private copies are now made digitally.

The levy applies to storage media of any kind that is distributed commercially in Austria. It follows from this that only the sale of physical data carriers should be subject to the levy. Accordingly, cloud storage would not be subject to a levy. Also in practice, collecting societies have not claimed a levy on virtual server storage so far and have not published a tariff for it.

The collecting society Austro-Mechana now has brought a test case in this regard and filed an action against a German cloud storage provider. According to Austro-Mechana, the provision of storage
space in the cloud from Germany to Austria also constitutes a "distribution of storage media in Austria" and is therefore subject to the levy. And even if this were not the case, a levy for cloud storage
would still have to be paid on the basis of the applicable EU legal situation - regardless of the wording of the Austrian law.

The first instance, the Commercial Court of Vienna, had still rejected these claims with reference to the Austrian legal situation and the legislative history of the relevant provision. The court of appeal, the Vienna Higher Regional Court, has now referred the issue to the European Court of Justice for a decision.

Now, the Advocate General delivered his opinion in this case: Find more information here: https://www.dorda.at/en/news/opinion-advocate-general-hogan-copyright-levies-cloud-services-national-legislators-leeway