Judgment;Abstract — ECLI:EU:C:2022:217
Date: 2022-03-24
Language of the case: German
Court formation: Second Chamber
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, therefore, a separate levy or fee is not payable in respect of the reproduction by a natural person for their own personal purposes based on cloud computing services provided by a third party provided that the levies paid in respect of devices/media in the Member State in question also reflects the harm caused to the rightholder by such reproduction. If a Member State has, in fact, elected to provide for a levy system in respect of devices/media, the referring court is in principle entitled to assume that this in itself constitutes ‘fair compensation’ in the sense of Article 5(2)(b) of Directive 2001/29, unless the rightholder (or their representative) can clearly demonstrate that such payment would in the circumstances of the case at hand be inadequate. 73. This assessment – which requires considerable economic expertise and a knowledge of a range of industries – is one which must be carried out at national level by the referring court. VI. Conclusion 74. In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Oberlandesgericht Wien, (Higher Regional Court, Vienna, Austria) as follows: The terms ‘reproductions on any medium’ in Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society includes reproduction based on cloud computing services provided by a third party. A separate levy or fee is not payable in respect of the reproduction by a natural person for their own personal purposes based on cloud computing services provided by a third party provided that the levies paid in respect of devices/media in the Member State in question also reflects the harm caused to the rightholder by such reproduction. If a Member State has, in fact, elected to provide for a levy system in respect of devices/media, the referring court is in principle entitled to assume that this in itself constitutes ‘fair compensation’ in the sense of Article 5(2)(b) of Directive 2001/29, unless the rightholder (or their representative) can clearly demonstrate that such payment would in the circumstances of the case at hand be inadequate. 1 Original language: English. 2 OJ 2001 L 167, p. 10. 3 For a description of cloud computing, Opinion of Advocate General Szpunar in VCAST (C‑265/16, EU:C:2017:649, points 1 to 3). The essence of the concept of cloud computing was defined by the US National Institute of Standards and Technology (NIST) in September 2011 as ‘a model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction. …’ Available at https://nvlpubs.nist.gov/nistpubs/Legacy/SP/nistspecialpublication800-145.pdf. The authors of that definition noted that ‘cloud computing is an evolving paradigm’. There would appear to be no universally accepted legal definition of cloud computing or cloud-based services. This is undoubtedly due to the ubiquitous nature and rapid evolution of that technology and related services. I consider, however, that the concept of ‘cloud storage’ is aptly described by Michael Muchmore & Jill Duffy in their article ‘The Best Cloud Storage and File-Sharing Services for 2021’, as referring ‘to storing your files somewhere other than your computer’s hard drive, usually on the provider’s servers. As one tech pundit put it: “There is no Cloud. It’s just someone else’s computer.” Having data in the cloud gives you the ability to access those files through the internet’. Available at https://www.pcmag.com/picks/the-best-cloud-storage-and-file-sharing-services. 4 Unless one of the other exceptions or limitations laid down in Article 5 of Directive 2001/29 is applicable. 5 In the past, the media of choice were tangible ‘blank’ storage items such as audio and video cassettes, then CDs and DVDs and more recently USB sticks. Devices such as computers, smartphones and external hard drives are also used today alongside cloud computing storage services. 6 9 April 1936 (BGBI. Nr.111/1936). 7 16 August 2018 (BGBI. I Nr.63/2018). In its request for a preliminary ruling, the referring court stated that in the Urheberrechtsgesetznovelle (Amendment to the Law on Copyright) 1980, BGBl. Nr. 321/1980, the Austrian legislature provided 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 reproduction and storage. That legislation has since been adapted in order to bring it into line with changes of circumstances and with the requirements of EU law, in the form of the Urheberrechts-Novelle (Amendment to Copyright Legislation) (‘Urh‑Nov’) 2015, BGBl. I Nr. 99/2015, which, in particular, brought computer hard disks within the scope of that legislation inasmuch as they constitute ‘storage media of any kind’. 8 Before it was presented to the Austrian Parliament as a draft law. 9 I would note at the outset that I consider that the storage of copyright-protected content in the cloud constitutes a reproduction of that content. The Danish Government stated that ‘cloud storage is achieved by a user sending, from a storage medium with internet access and built-in memory, such as a smartphone or computer, their selected content to be stored on the cloud service server. By doing so, the user is simultaneously making a digital reproduction of the selected content because the content is now stored on both the user’s storage medium and the cloud service server. Subsequently, the user can either keep the content on their own storage medium or delete it, for example to free up storage space on their own storage medium, so that it only appears in the cloud service. The user can then access the content on the cloud service server from any device that can connect to the cloud service, which is usually from one of the user’s own storage media and very often, in all likelihood, from the storage media that the user originally used to set up the cloud storage’. Emphasis added. 10 In its judgment of 10 April 2014, ACI Adam and Others (C‑435/12, EU:C:2014:254, paragraph 21), the Court stated that Article 2 of Directive 2001/29 provides that Member States are to grant authors the exclusive right to authorise or to prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part of their works, while reserving to those Member States the option, under Article 5(2) of that directive, of providing for exceptions and limitations to that right. 11 Judgment of 5 March 2015, Copydan Båndkopi (C‑463/12, EU:C:2015:144, paragraph 20 and the case-law cited). 12 See also Article 5(5) of Directive 2001/29. 13 The principle of technological neutrality requires that the interpretation of the provisions of Directive 2001/29 does not hold back innovation and technological progress. See by analogy, judgment of 15 April 2021, Eutelsat (C‑515/19, EU:C:2021:273, paragraph 48). 14 Legal persons are excluded from benefiting from that exception and are not entitled to make private copies without receiving prior authorisation from the rightholders of the protected works or subject matter concerned. The Court has thus ruled that it is inconsistent with Article 5(2) of Directive 2001/29 to apply a private copying levy, in particular with regard to digital reproduction equipment, devices and media which are acquired by persons other than natural persons for purposes clearly unrelated to such private copying. Judgment of 9 June 2016, EGEDA and Others(C‑470/14, EU:C:2016:418, paragraphs 30 and 31).However, in its judgment of 11 July 2013, Amazon.com International Sales and Others(C‑521/11, EU:C:2013:515, paragraph 37), the Court held that Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that it does not preclude legislation of a Member State which indiscriminately applies a private copying levy on the first placing on the market in national territory, for commercial purposes and for consideration, of recording media suitable for reproduction, while at the same time providing for a right to reimbursement of the levies paid in the event that the final use of those media does not meet the criteria set out in that provision, where, having regard to the particular circumstances of each national system and the limits imposed by Directive 2001/29, practical difficulties justify such a system of financing fair compensation and the right to reimbursement is effective and does not make repayment of the levies paid excessively difficult. 15 Judgment of 21 October 2010, Padawan (C‑467/08, EU:C:2010:620, ‘the Padawan judgment’, paragraph 30). 16 Judgment of 5 March 2015, Copydan Båndkopi (C‑463/12, EU:C:2015:144, paragraph 87 and the case-law cited). 17 The Padawan judgment, paragraph 45. 18 See to that effect, the VCAST judgment, paragraphs 32 to 34 and the case-law cited. See also by analogy, judgment of 10 November 2016, Vereniging Openbare Bibliotheken (C‑174/15, EU:C:2016:856, paragraph 70). 19 Emphasis added. 20 It must be noted that Article 5(2)(b) of Directive 2001/29 makes no express reference to the law of the Member States. In that regard, it is settled case-law that the need for uniform application of EU law and the principle of equality require that where provisions of EU law make no express reference to the law of the Member States for the purpose of determining their meaning and scope they must normally be given an autonomous and uniform interpretation throughout the Union. See by analogy, the Padawan judgment, paragraphs 31 to 33, concerning the concept of ‘fair compensation’ referred to in Article 5(2)(b) of Directive 2001/29. I therefore consider that the terms ‘reproductions on any medium’ must be given an autonomous and uniform interpretation throughout the Union. 21 See by contrast, judgment of 19 December 2019, Nederlands Uitgeversverbond and Groep Algemene Uitgevers (C‑263/18, EU:C:2019:1111, paragraph 37). In that case the Court stated that it was unclear from the wording, inter alia, of Article 4 of Directive 2001/29 or any other provision of that directive whether the supply by downloading, for permanent use, of an e-book constitutes a communication to the public pursuant to Article 3 of that directive, in particular a making available to the public of a work in such a way that members of the public may access it from a place and at a time individually chosen by them, or an act of distribution for the purposes of Article 4 of that directive. After taking account, inter alia, of the objectives pursued by Articles 3 and 4 of Directive 2001/29, the WIPO Copyright Treaty (‘the WCT’) in Geneva on 20 December 1996, a treaty which was approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6) and which entered into force with respect to the European Union on 14 March 2010 (OJ 2010 L 32, p. 1) and the legislative history of Directive 2001/29, the Court held that the supply to the public by downloading, for permanent use, of an e-book is covered by the concept of ‘communication to the public’ within the meaning of Article 3(1) of that directive. 22 While the exception in Article 5(2)(b) of Directive 2001/29 must be interpreted strictly, the terms of that provision nonetheless largely mirror the corresponding broadly defined and technologically neutral exclusive reproduction right in Article 2 of Directive 2001/29. That provision states that Member States must provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form. See also Article 9(1) of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), as amended on 28 September 1979. 23 In its judgment of 27 June 2013, VG Wort and Others (C‑457/11 to C‑460/11, EU:C:2013:426, paragraph 67), the Court excluded from the scope of Article 5(2)(a) of Directive 2001/29, all non-analogue mediums of reproduction, namely, in particular, digital mediums, as, in order to be similar to paper as a medium for reproduction, a substrate must be capable of bearing a physical representation capable of perception by human senses. See by contrast, judgment of 5 March 2015, Copydan Båndkopi (C‑463/12, EU:C:2015:144, paragraph 25), in which the Court found that making available digital reproduction equipment, devices and media which is able to make copies to natural person as private users is sufficient in itself to justify the application of the private copying levy. 24 The words ‘somewhat more intangible media’ are, admittedly, deliberately imprecise. Even in the case of cloud computing and cloud-based or internet storage services, the data in question – which may or may not include copyright-protected content – is ultimately stored in digital format by the cloud computing service provider on physical media/substrates such as servers. 25 Emphasis added. In its judgment of 27 June 2013, VG Wort and Others (C‑457/11 to C‑460/11, EU:C:2013:426, paragraphs 65 and 66), the Court stated that it follows from the wording of Article 5(2)(a) of Directive 2001/29, which specifically refers to paper, that mediums which do not have comparable and equivalent qualities to those of paper do not come within the scope of the exception referred to in that provision. If it were otherwise, the effectiveness of that exception could not be ensured, particularly in the light of the exception referred to in Article 5(2)(b) of Directive 2001/29, which concerns ‘reproductions on any medium’. In her Opinion in Joined Cases VG Wort (C‑457/11 to C‑460/11, EU:C:2013:34, point 39), Advocate General Sharpston noted that while the definition in Article 5(2)(a) is circumscribed only in terms of the means of reproduction and the medium used, that in Article 5(2)(b) refers exclusively to the identity of the person making the reproduction and the purposes for which it is made. For an assessment of the difference in scope of Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29, see also, Opinion of Advocate General Cruz Villalón in Hewlett-Packard Belgium (C‑572/13, EU:C:2015:389, points 35 to 54). See also judgment of 12 November 2015, Hewlett-Packard Belgium (C‑572/13, EU:C:2015:750, paragraphs 28 to 43) on the overlap between the respective ambits of Article 5(2)(a) and (b) of Directive 2001/29. 26 See recital 5 of Directive 2001/29. 27 Recital 31 of Directive 2001/29 specifically refers to the fact that the existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. In that regard, the Court in its judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 161 to 164) stated in relation to the mandatory exception to the reproduction right provided in Article 5(1) of Directive 2001/29 that the interpretation of the conditions laid down in that provision must enable the effectiveness of the exception thereby established to be safeguarded and permit observance of the exception’s purpose as resulting in particular from recital 31 of that directive. The Court further stated that ‘in accordance with its objective, that exception must allow and ensure the development and operation of new technologies and safeguard a fair balance between the rights and interests of right holders, on the one hand, and of users of protected works who wish to avail themselves of those new technologies, on the other’. See also, judgment of 5 June 2014, Public Relations Consultants Association (C‑360/13, EU:C:2014:1195, paragraph 24). I see no reason to depart from that approach in the present case despite the optional nature of the exception contained in Article 5(2)(b) of Directive 2001/29 and the requirement to interpret its scope strictly. 28 See paragraph 35 of the VCAST judgment and the case-law cited. 29 In judgment of 5 March 2015, Copydan Båndkopi (C‑463/12, EU:C:2015:144, paragraph 86), the Court noted that the wording of Article 5(2)(b) of Directive 2001/29 does not specify the characteristics of the devices by or with the aid of which copies for private use are made. In particular, that provision does not contain any reference to the legal nature of the connection, such as the right to property, which may exist between the natural person who makes the reproduction for private use and the device used by that person. The Court further held at paragraph 91 of that judgment that Directive 2001/29 does not preclude national legislation which provides for fair compensation in respect of reproductions of protected works made by a natural person by or with the aid of a device which belongs to a third party. 30 At paragraph 15 of the VCAST judgment the Court stated that ‘in practice, the user selects a programme on the VCAST website, which includes all the programming from the television channels covered by the service provided by that company. The user can specify either a certain programme or a time slot. The system operated by VCAST then picks up the television signal using its own antennas and records the time slot for the selected programme in the cloud data storage space indicated by the user. That storage space is purchased by the user from another provider’. Emphasis added. 31 The French Government noted that a private individual may record his or her legally acquired music or video library on the cloud, so as have easy access to them, without having to use the physical support of these works. 32 In his Opinion in VCAST (C‑265/16, EU:C:2017:649, points 23 to 28), Advocate General Szpunar considered that there was nothing to suggest that Article 5(2)(b) of Directive 2001/29 prevents reproduction under the exception provided for in that provision being made in storage space in the cloud. Advocate General Szpunar acknowledged that making reproductions and storing them in the cloud requires the intervention of third persons. He considered, however, that this form of reproduction should not be excluded from the scope of the private copying exception in Article 5(2)(b) of Directive 2001/29 simply by reason of the intervention of a third party which goes beyond simply making available media or equipment. According to Advocate General Szpunar, as long as it is the user who takes the initiative in respect of the reproduction and defines its object and modalities, there is no decisive difference between such an act and a reproduction made by the same user with the aid of equipment which he or she controls directly. 33 Provided they have lawful access to the copyright-protected content. 34 The VCAST judgment, paragraph 39. 35 In its judgment of 5 March 2015, Copydan Båndkopi (C‑463/12, EU:C:2015:144, paragraph 82), the Court confirmed that Article 5(2)(b) of Directive 2001/29 lays down an exception to the exclusive right of a rightholder to authorise or prohibit the reproduction of the work in question. That necessarily presupposes that the subject matter of the reproduction covered by that provision is a protected work, not a counterfeited or pirated work. 36 See recital 32 of Directive 2001/29 which states, inter alia, that ‘some exceptions or limitations only apply to the reproduction right, where appropriate’. The private copying exception in Article 5(2)(b) of Directive 2001/29 applies to the reproduction of works, fixations of performances, phonograms, fixations of films and fixations of broadcasts. 37 VCAST made available to its customers via the internet a video recording system, in storage space within the cloud, for terrestrial programmes of Italian television organisations. The user selected a programme or time slot on the VCAST website. The system operated by VCAST then picked up the television signal and recorded the time slot for the selected programme in the cloud data storage space indicated by the user. That storage space was purchased by the user from another provider. The present case is thus novel as VCAST, unlike Strato, did not itself make data storage available. 38 The French Government cited the judgment 11 July 2013, Amazon.com International Sales and Others (C‑521/11, EU:C:2013:515, paragraphs 64 and 65), which referred to the possibility for a person who has previously paid that levy in a Member State which does not have territorial competence to request its repayment in accordance with its national law. 39 The Padawan judgment, paragraph 44. 40 The Padawan judgment, paragraph 45. 41 The Padawan judgment, paragraph 46-48. 42 The Padawan judgment, paragraph 49. The quest for a fair balance in the copyright context may also bring to the fore the need to reconcile intellectual property rights guaranteed by Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), the freedom of expression and information guaranteed by Article 11 of the Charter and indeed the public interest. See judgment of 9 March 2021, VG Bild-Kunst (C‑392/19, EU:C:2021:181, paragraph 54 and the case-law cited). See also for a general discussion of the nature and complexities of the exceptions and limitations contained in Article 5(2) and (3) of Directive 2001/29, judgment of 29 July 2019, Funke Medien NRW (C‑469/17, EU:C:2019:623, paragraphs 34 to 54). In addition, the Court has noted that the exceptions provided for in Article 5 of Directive 2001/29 must be applied in a manner consistent with the principle of equal treatment, affirmed in Article 20 of the Charter, which, according to the Court’s established case-law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.Judgment of 22 September 2016, Microsoft Mobile Sales International and Others(C‑110/15, EU:C:2016:717, paragraph 44). 43 The Padawan judgment, paragraphs 55 and 56. 44 Judgment of 9 June 2016, EGEDA and Others (C‑470/14, EU:C:2016:418, paragraph 21). 45 The scope of the Member States’ discretion in the transposition into national law of a particular exception or limitation referred to in Article 5(2) or (3) of Directive 2001/29 must be determined on a case-by-case basis, in particular, according to the wording of the provision in question, the degree of the harmonisation of the exceptions and limitations intended by the EU legislature being based on their impact on the smooth functioning of the internal market, as stated in recital 31 of Directive 2001/29. Judgment of 29 July 2019, Funke Medien NRW (C‑469/17, EU:C:2019:623, paragraph 40). 46 Provided that compensation is ultimately borne by the private users. Given the practical difficulties of collecting fair compensation from private users, the Court has held that Member States are free to finance that fair compensation by means of a levy imposed on persons making reproduction equipment, devices and media available to natural persons. As the private copying levy can be passed on to the private user by including it in the price charged for making the reproduction equipment, devices and media available or in the price for the copying service supplied, such a system is acceptable as the burden of the levy is ultimately to be borne by the private user. By contrast, Article 5(2)(b) of Directive 2001/29 precludes a scheme for fair compensation for private copying which is financed from the General State Budget in such a way that it is not possible to ensure that the cost of that compensation is borne by the users of private copies. See to that effect, judgment of 9 June 2016, EGEDA and Others (C‑470/14, EU:C:2016:418, paragraphs 33 to 42). 47 The Padawan judgment, paragraph 37. 48 See, judgments of 11 July 2013, Amazon.com International Sales and Others (C‑521/11, EU:C:2013:515, paragraph 40), and of 22 September 2016, Microsoft Mobile Sales International and Others (C‑110/15, EU:C:2016:717, paragraph 26). 49 Article 5(2)(b) of Directive 2001/29 imposes on a Member State which has introduced the private copying exception into its national law an obligation to achieve a certain result, in the sense that that State must ensure, within the framework of its powers, that the fair compensation intended to compensate the holders of the exclusive right of reproduction harmed for the prejudice sustained is actually recovered, especially if that harm arose on the territory of that Member State. In that regard, it is assumed that the harm to the rightholder due to private copying arises in the Member State in which the final user resides. Judgment of 11 July 2013, Amazon.com International Sales and Others (C‑521/11, EU:C:2013:515, paragraphs 57 and 58 and the case-law cited). 50 It must be recalled that a private copying exception is only applicable where reproduction for private use is made from a lawful source. A private levy system which does not distinguish between reproductions which are made from a lawful source and those made from an unlawful source was held by the Court in its judgment of 10 April 2014, ACI Adam and Others (C‑435/12, EU:C:2014:254) not to respect the fair balance between the rightholder and users. 51 Such situations do not respect the ‘fair balance’ required by recital 31 of Directive 2001/29. Judgments of 12 November 2015, Hewlett-Packard Belgium (C‑572/13, EU:C:2015:750, paragraph 86), and of 22 September 2016, Microsoft Mobile Sales International and Others (C‑110/15, EU:C:2016:717, paragraph 51). 52 Judgment of 11 July 2013, Amazon.com International Sales and Others (C‑521/11, EU:C:2013:515, paragraphs 41 to 45 and the case-law cited). 53 See also judgment of 22 September 2016, Microsoft Mobile Sales International and Others (C‑110/15, EU:C:2016:717, paragraph 35). It is true therefore that from a purely theoretical standpoint the fact that such a levy is paid is no substitute for an individualised assessment of the harm to the rightholders in each case. 54 Judgment of 12 November 2015, Hewlett-Packard Belgium (C‑572/13, EU:C:2015:750, paragraphs 70 and 71). 55 In his Opinion in Copydan Båndkopi (C‑463/12, EU:C:2014:2001, points 60 and 61), Advocate General Cruz Villalón noted that recital 35 of Directive 2001/29 states that, ‘in cases where rightholders have already received payment in some other form, for instance as part of a licence fee, no specific or separate payment may be due’. He considered that it ‘may be inferred from that recital that Directive 2001/29 gives Member States the responsibility for deciding whether it is appropriate to avoid any overcompensation, that is to say, to ensure that users are not placed in a situation of having to pay the private copying levy intended to finance fair compensation twice, the first time on the occasion of the lawful acquisition in the course of trade of the files containing the works and the second time on the occasion of the acquisition of the reproduction media, as it appears might be the case in the main proceedings’. 56 Moreover, the guidelines laid down in the Padawan judgment, must nonetheless be read in context and in the light of the technology and user habits existing in 2010 when it was decided even though the ruling in that judgment has been consistently refined by the Court in subsequent cases. 57 The discretion enjoyed by the Member States in implementing the exceptions and limitations provided for in Article 5(2) and (3) of Directive 2001/29 is thus considerable, although it cannot be used so as to compromise the objectives of that directive that consist in establishing a high level of protection for authors and in ensuring the proper functioning of the internal market. Judgment of 29 July 2019, Funke Medien NRW (C‑469/17, EU:C:2019:623, paragraph 50 and the case-law cited). In addition, the Court has stated that it is apparent from recital 44 of Directive 2001/29 that the EU legislature envisaged that the scope of exceptions or limitations could be limited even more when it comes to certain new uses of copyright works and other subject matter. See judgment of 10 April 2014, ACI Adam and Others (C‑435/12, EU:C:2014:254, paragraph 27). 58 These terms are also undefined. 59 These terms are also undefined. 60 And for ends that are neither directly nor indirectly commercial. 61 The existence of such levies seems to vary considerably as between the Member States since it is possible that a particular device (such as a personal computer or smartphone) may be subject to a levy in one Member State and to none in another. The same may be true of the amounts of any such levy which may vary from one Member State to another. See in that regard, Private Copying Global Study 2020. Available at https://www.irma.asso.fr/IMG/pdf/sg20-1067_private_copying_global_study_2020_2020-11-23_en.pdf. It would appear for example from that study that Ireland has an exception for private copying pursuant to Article 101 of the Copyright and Related Rights Act, 2000 but that no private copying levy is provided for. 62 See pages 286 to 296 of the study. 63 See pages 286 to 296 of the study. 64 In that regard, Strato also annexed to its observations a list of Austro-Mechana’s tariffs for storage media put on the market from 1 January 2018. See Annex 12. 65 Strato notes that no Member State currently provides for a private copying levy in respect of cloud-based services. The French Government indicated at the hearing on 7 July 2021, that France provides for a levy in respect of Network Based Personal Video Recorder services. 66 At least in Austria, but I suspect across all Member States. 67 I have some difficulty with such presumptions given that the emergence of online services which license copyright-protected content such as books, music, films may considerably reduce the recourse by natural persons users to copying protected content in breach of Article 2 of Directive 2001/29. I consider that levies must be set to take account of this phenomenon and the fact that devices and media may be increasingly used to store content which simply does not infringe the right to reproduction such as private photos taken by the owner of a device. 68 As regards this latter point, the fact that Strato may have paid levies as it claims on its servers in Germany is largely irrelevant in the context of the present proceedings. If any levies are due in respect of the provision of cloud computing services provided to natural persons residing in Austria, they are due in Austria. In accordance with the judgment of 11 July 2013, Amazon.com International Sales and Others (C‑521/11, EU:C:2013:515, paragraph 37), Strato may however be able to seek reimbursement of (part of) the levies paid in Germany.