Article 17(1) of the DSM Directive is premised on the idea that certain user-uploaded (UUC) internet platforms – that is: online content sharing service providers (OCSSPs) – perform acts of communication/making available to the public within the meaning of Article 3 of the InfoSoc Directive when they store and give the public access to such content. As a consequence, they are required to make best efforts to obtain relevant rightholders’ authorization (Article 17(4)).
The legislative history and resulting text of Article 17 admittedly revolve around the right of communication/making available to the public. But do OCSSPs also perform acts of reproduction when they store the UUC, which they subsequently display, with the result that the relevant authorization sought from rightholders also encompasses that exclusive right?
The answer – in my view quite straightforwardly – is in the affirmative, as I also wrote in my Commentary to the DSM Directive provisions (see p. 334). Yet, it does not appear as clear as it might seem, given that it is at the centre of the referral in Austro-Mechana, C-579/24.
Yesterday, Advocate General (AG) Emiliou delivered his Opinion and advised the Court of Justice of the European Union (CJEU) to rule in the sense that, yes, acts of reproduction are engaged by OCSSPs’ storage. Hence, the authorization that they obtain must necessarily also encompass such right in addition to that of communication/making available to the public.
Let’s see in more detail how the AG reasoned.
The history of Article 17
The AG began by recalling the policy environment that led to the adoption of Article 17. A noteworthy aspect is that the AG is of the view that Article 17 was meant to “dispel […] legal uncertainty” regarding the treatment of certain UUC platforms, including regarding the availability of the hosting safe harbour.
As readers interested in this area of copyright are well aware, this was probably one of the most contentious aspects of the provision. Yet, this debate was likely settled in 2021, when the CJEU Grand Chamber issued its judgment in YouTube/Cyando. The outcome of those referrals contradicts the idea – enshrined in recital 64 of the DSM Directive and the European Commission’s Article 17 Guidance – that Article 17 is a mere clarification, rather than a substantial evolution, of the law.
UUC stored on OCSSPs’ servers: An act of reproduction
Before tackling the core of the referral, the AG further warned that his considerations would only apply to OCSSPs and not other information society service providers, and would only concern copies stored on OCSSPs’ servers.
The AG noted the broad formulation of the right of reproduction in both international and EU law. He considered that “the fact that, from both a technical and an economic perspective, the digital copies at issue are merely incidental to the communication or making available to the public of the content, within the meaning of Article 3 of that directive, is, in principle, irrelevant.” (para 53)
He then turned to the temporary copies exemption in Article 5(1) of the InfoSoc Directive, which requires the cumulative fulfilment of 5 conditions. According to the AG, this provision would not be applicable to OCSSPs, given that the copies made on their servers would not be temporary.
Last but not least, the AG offered a simple but seemingly needed reminder that there is no ‘one-right-fits-all’ approach in copyright law. Put differently, the acts of communication/making available to the public, which OCSSPs are deemed to perform, do not pre-empt the consideration of other exclusive rights, including having regard to acts of reproduction.
Scope of OCSSPs’ authorization
Turning to the scope of the authorization that OCSSPs are required to seek from relevant rightholders, the AG considered that (para 71):
a textual and historical analysis of Article 17 of Directive 2019/790 does not permit a definitive conclusion to be drawn as to whether the authorisation required under that provision necessarily covers the making of digital copies of protected content on the servers of online content-sharing service providers that are technically required for the purposes of communicating or making available that content to the public. Nevertheless, a contextual and teleological interpretation of Article 17(1) of Directive 2019/790 leads me to endorse the position adopted by the Commission in its guidance.
The view of the European Commission’s Article 17 Guidance is that the authorization obtained by OCSSPs necessarily extends to the making of copies too, not only their subsequent communication/making available to the public. According to the AG, this position is sensible and holding otherwise would deprive Article 17 of its effectiveness.
Furthermore, requiring users to obtain their own authorizations (reminder: OCSSPs’ authorization cover users under certain conditions) would unduly compress their freedom of expression and thus be inter alia contrary to the protection afforded by Article 11 of the EU Charter.
Finally, rightholders can entrust the management of their reproduction right to a collective management organization (CMO), but that should be the same CMO that manages their communication/making available right.
Comment
Simply put: The AG’s response to the referred questions is correct and the CJEU should follow it.
On a broader level, the Opinion offers a valuable reminder that distinct rights are indeed separate and that there is a requirement to guarantee their high level of protection. Insofar as the right of reproduction is concerned, the latter also stems from its broad formulation in both international and EU law.
When the AG notes that incidental copies are still copies, he offers a useful pointer for other contexts too, including the (possibly inflated) discussion concerning the relevance or not of memorization in the context of AI training.
The applicability of the right of reproduction to AI training is inter alia at the centre of the pending referral in Like Company v. Google [IPKat here], so we shall see what AG Szpunar makes of it when he issues his Opinion, which is expected in September. Although the Like Company referral relates to the press publishers’ related right rather than copyright, that does not appear relevant to determine if there is copying in the first place (although it could attract different considerations having regard to the follow-up question whether the copying in question is actionable).
[Originally published on The IPKat on 27 March 2026]