Ed Sheeran wins copyright dispute - Austro-Mechana case

ED SHEERAN “SHAPE OF YOU”

In 2018, Ed Sheeran was sued for copyright infringement before the High Court of England and Wales. After 4 years of legal disputes, the court ruled in favour of the world-wide famous songwriter.

The singer Sami Chokri launched in 2015 the song “Oh Why”. In 2017, Ed Sheeran and his co-writers created the well-known song “Shape of You”, which became one of the most successful hits of the year. 

Later on, Chokri sued Ed Sheeran and his co-writers, for copying a substantial part of its song “Oh Why”, without giving him due credit, and asked the court to assess the similarity between both songs.

The claimant argued that the “Oh I” included Sheeran’s song “Shape of you”, was “strikingly similar” to the “Oh Why”. As a consequence, Chokri requested in his lawsuit, a compensation for the damages caused and a share of the profits derived from the song. 

From its side, Sheeran rejected the alleged infringement, stating that he had not heard “Oh Why” before composing “Shape of You” and consequently, considered that it was a “baseless claim” of plagiarism.

In its ruling, the Court finally dismissed the copyright infringement claim, stating that even if there were some similarities between “Oh why” and “Oh I”, there were also significant differences that did not allow to conclude the existence of copyright infringement. Moreover, the court considered that Sheeran did not copy any phrase form “Oh why”, “neither deliberately nor subconsciously”. 

AUSTRO-MECHANA

The Court of Justice of the European Union (CJEU) recently issued a decision on a preliminary ruling regarding the applicability of the private copying exception for works stored by cloud computing service providers. 

As our readers might know, the reproduction right is an exclusive right that allows copyright owners to authorise or prevent others from using their work. From its side, the Directive 2001/29 (the Information Society Directive) contains a limitation to the reproduction right, which is the private copying exception. Under this exception, users are allowed to save copies of works in different medias, and the Member States that wish to implement this exception should ensure that a fair remuneration is paid to copyright holders.  

As regards the recent CJEU case, Austro-Mechana is a copyright collecting society based in Austria, that is in charge of collecting the revenues obtained from the use of copyrighted works generated under the private copy exception. 

Austro-Mechana filed a claim for the remuneration due against Strato AG, which is a cloud storage provider. The claim was dismissed by the Commercial Court of Vienna, on the grounds that Strato provided to its users an online storage service, but did not supply them with storage media. For this reason, Austro-Mechana lodged an appeal against this decision, and the Court in charge of the trial decided to raise a preliminary ruling to the CJEU. 

As stated in article 5.2.b) of the Directive 2001/29, “private copying exception applies to reproductions on any medium”.  The CJEU confirmed that the expression “any medium” includes the medias capable of reproducing the work, hence includes the servers used in cloud computing. To this extent, it is not relevant the fact that the server is owned by a third party (Strato). Therefore, the CJEU considered that “the concept of ‘any medium’ covers a server on which storage space is made available to a user by the provider of a cloud computing service”.

As regards the fair compensation, the Court ruled that Member States should ensure a fair compensation to rightholders, but this compensation does not necessarily have to be paid by cloud storage service providers. 

To summarise, the CJEU ruled that the private copying exception is applicable to cloud storage services and does not exclude the obligation to ensure a fair remuneration to copyright holders. Notwithstanding, this obligation should not necessarily be imposed on cloud storage services.