Provisional text
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 26 March 2026 (1)
Case C‑579/24
Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH,
AKM eingetragene Genossenschaft mit beschränkter Haftung
v
Aufsichtsbehörde für Verwertungsgesellschaften
(Request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court, Austria))
( Reference for a preliminary ruling – Copyright and related rights – Directive (EU) 2019/790 – Article 17 – Liability of online content-sharing service providers for protected content uploaded by their users – Scope of liability – Obligation for those providers to obtain an authorisation from rightholders for communicating or making that content available to the public – Directive 2001/29/EC – Article 2 – Reproduction right – Making of digital copies of protected content on the service providers’ computer servers – Copies that are technically required for the content to be made available to the public – Absence of any obligation to obtain a separate authorisation from rightholders)
I.      Introduction
1.        The present case affords the Court of Justice a second opportunity to interpret (2) Article 17 of Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market. (3) That provision details the conditions under which online content-sharing service providers, such as YouTube, Soundcloud and Pinterest, may incur liability for giving the public access to works or other subject matter
(‘protected content’), uploaded to their platforms by their users in breach of copyright.
2.        More specifically, Article 17(1) of Directive 2019/790 provides that those service providers carry out an act of ‘communication to the public’ or of ‘making available to the public’, as defined in Article 3 of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, (4) when they give the public access to protected content.
3.        Pursuant to the latter provision, in principle, rightholders have the exclusive right to communicate or make available their works or other subject matter. Consequently, online content-sharing service providers cannot themselves perform an act of communication or of making available to the public without obtaining the prior authorisation from the rightholders, typically by concluding a licensing agreement. That obligation to obtain such an authorisation is clearly stated in Article 17(1) of Directive 2019/790.
4.        The questions referred by the Bundesverwaltungsgericht (Federal Administrative Court, Austria) arise from the fact that, when protected content is uploaded by users of online content-sharing services to online platforms, digital copies of that content are automatically made and stored on the service providers’ computer servers. The making of such copies is technically required in order to give the public access to the content in question.
5.        However, as I will explain, this potentially infringes another right protected under Article 2 of Directive 2001/29, namely the ‘reproduction right’, which provides, in essence, that the making of copies of protected content is, in principle, also reserved to rightholders.
6.        In that context, the referring court asks, inter alia, whether the digital copies of protected content made on the servers of online content-sharing service providers that are technically required to be able to give the public access to that content constitute ‘reproductions’, within the meaning of Article 2 of Directive 2001/29, falling within the scope of that right. In the affirmative, it asks the Court of Justice to clarify whether the authorisations that those service providers must obtain from rightholders under Article 17(1) of Directive 2019/790 to communicate or make protected content available to the public necessarily also authorise those providers to make such copies.
7.        The main proceedings concern a dispute between, on the one hand, Austro-Mechana and AKM (Austro-Mechana’s parent company) – two collective management societies registered in the Austrian commercial register (‘the applicants’), which hold management licences, as provided for in Directive 2014/26/EU, (5) for the purposes of exercising and managing copyright and related rights in musical works and works of language associated with such works, in the interests of the rightholders – and, on the other hand, the
Aufsichtsbehörde für Verwertungsgesellschaften
(Austrian supervisory authority for collecting
societies) (‘the Supervisory Authority’).
8.        In essence, the Supervisory Authority takes the view that the authorisation that online content-sharing service providers must obtain from rightholders under Article 17(1) of Directive 2019/790
necessarily covers
the making of digital copies of protected content on the service providers’ servers that are technically required to be able to give the public access to that content. By contrast, the applicants argue that the making of such copies should be authorised separately and, therefore, be subject to a different licensing agreement, and that it is, consequently, possible for such an agreement to be negotiated with those service providers by a collective management society (in this case, Austro-Mechana) other than the one which manages the right of communication or making available to the public of the relevant rightholders (in this case, AKM). I will argue that the Court should adopt the former view.
II.    Legal Framework
A.      International law
9.        The Berne Convention for the Protection of Literary and Artistic Works,
signed in Berne on 9 September 1886 (Paris Act of 24 July 1971), in the version resulting from the amendment of 28 September 1979 (‘the Berne Convention’), signed by all the Member States, provides in Article 9:
‘(1)      Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorising the reproduction of these works, in any manner or form.
(2)      It shall be a matter for legislation in the countries of the
Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
(3)      Any sound or visual recording shall be considered as a reproduction for the purposes of this Convention.’
B.      European Union law
1.      Directive 2001/29
10.      According to Article 2 of Directive 2001/29, entitled ‘Reproduction right’:
‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a)      for authors, of their works;
(b)      for performers, of fixations of their performances;
(c)      for phonogram producers, of their phonograms;
(d)      for the producers of the first fixations of films, in respect of the original and copies of their films;
(e)      for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.’
11.      Article 3 of that directive addresses the ‘Right of communication to the public of works and right of making available to the public other [subject matter]’. It provides, in paragraph 1, that ‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them’. In paragraph 2, it enumerates the other specific cases to which that right applies, which are the same as those listed in Article 2(b) to (e) of Directive 2001/29.
2.      Directive 2014/26
12.      Article 4 of Directive 2014/26 states that ‘Member States shall ensure that collective management organisations act in the best interests of the rightholders whose rights they represent and that they do not impose on them any obligations which are not objectively necessary for the protection of their rights and interests or for the effective management of their rights’.
13.      Article 5 of that directive enumerates the specific rights of rightholders with regard to collective management organisations.
14.      Article 16(1) and (2) of Directive 2014/26 addresses the licensing process and the criteria for licensing terms.
3.      Directive 2019/790
15.      According to Article 2(6) of Directive 2019/790 an ‘online content-sharing service provider’ is ‘a provider of an information society service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organises and promotes for profit-making purposes’.
16.      Article 17 of that directive reads as follows:
‘1.      Member States shall provide that an online content-sharing service provider performs an act of communication to the public or an act of making available to the public for the purposes of this Directive when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.
An online content-sharing service provider shall therefore obtain an authorisation from the rightholders referred to in Article 3(1) and (2) of Directive [2001/29], for instance by concluding a licensing agreement, in order to communicate to the public or make available to the public works or other subject matter.
2.      Member States shall provide that, where an online content-sharing service provider obtains an authorisation, for instance by concluding a licensing agreement, that authorisation shall also cover acts carried out by users of the services falling within the scope of Article 3 of Directive [2001/29] when they are not acting on a commercial basis or where their activity does not generate significant revenues.
3.      When an online content-sharing service provider performs an act of communication to the public or an act of making available to the public under the conditions laid down in this Directive, the limitation of liability established in Article 14(1) of Directive 2000/31/EC(6)
shall not apply to the situations covered by this Article.
The first subparagraph of this paragraph shall not affect the possible application of Article 14(1) of Directive [2000/31] to those service providers for purposes falling outside the scope of this Directive.
4.      If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:
(a)      made best efforts to obtain an authorisation, and
(b)      made, in accordance, with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event
(c)      acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).
…’
C.      National Law
17.      Paragraph 15 of the Bundesgesetz über das Urheberrecht an Werken der Literatur und der Kunst und über verwandte Schutzrechte (Urheberrechtsgesetz) (Law on copyright in literary and artistic works and related rights) (Law on copyright)
(‘the UrhG’), entitled ‘Reproduction right’, provides, in subparagraphs 1 and 2:
‘(1)      The author shall have the exclusive right to reproduce the work, irrespective of the process used, the quantity reproduced and whether temporarily or permanently.
(2)      Reproduction shall consist, in particular and inter alia, in fixing the recitation or performance of a work on any device permitting repeated visual or sound reproduction (video or audio recording), such as, for example, on film or phonograms.’
18.      Paragraph 17
of the UrhG, entitled ‘Broadcasting right’, provides, in subparagraph 1:
‘(1)      The author shall have the exclusive right to broadcast the work by radio, television or similar means.’
19.      Subparagraph 1 of Paragraph 18a of the UrhG, entitled ‘Right to make available’, is worded as follows:
‘The author shall have the exclusive right to make the work available to the public, by wire or wireless means, in such a way that members of the public may access it from a place and at a time individually chosen by them.’
20.      Paragraph 18c of the UrhG, entitled ‘Broadcasting and making available by providers of large online platforms’, provides:
‘Subject to the conditions of Paragraph 17(1) and (2) and Paragraph 18a, a work is also broadcast or made available to the public by anyone who, as a provider of a large online platform, gives the public access to copyright-protected works uploaded by its users. Any such provider shall therefore obtain authorisation from the authors. …’
21.      According to Paragraph 24a of the UrhG,
entitled ‘Authorisation to use a work or right to use a work for the purpose of broadcasting it or making it available to the public pursuant to Paragraph 18c’, the authorisation granted to the provider of a large online platform to use a work for the purpose of broadcasting it or making it available to the public pursuant to Paragraph 18c of the UrhG also extends to the users of that platform for that same purpose to the extent of the authorisation granted and subject to the condition that those users are not acting on a commercial basis or their activity does not generate significant revenues. Similarly, Paragraph 24a of the UrhG also provides that an authorisation granted to the user entitles the provider to engage in authorised use.
III. Facts, national proceedings and the questions referred
22.      Austro-Mechana, the first applicant, is a collective management society within the meaning of Paragraph 2(1) of the Bundesgesetz über Verwertungsgesellschaften (Law on collective management societies). In that capacity, it represents the rights and interests of various rightholders in works and other protected subject matter, within the meaning of the UrhG. It is a wholly owned subsidiary of the second applicant, AKM, which is also a collective management society. In order to perform their activities, Austro‑Mechana and AKM conclude management agreements with rightholders. Those management agreements entitle them to manage certain exclusive rights of the rightholders and, inter alia, to negotiate on their behalf authorisations or licensing agreements with online content-sharing service providers.
23.      The management licence granted to Austro-Mechana by the Supervisory Authority authorises it to ‘manage works of music and works of language associated with works of music … for the purposes of exercising or managing rights of reproduction …
as well as corresponding claims to participation and/or remuneration’. (7) It applies, inter alia, to the ‘reproduction and/or distribution on video and/or audio recordings (storage media) pursuant to Paragraphs 15 and 16 of the UrhG’ and the ‘reproduction …
on video and audio recordings (storage media) in connection with cinematographic works intended for broadcasting which a broadcaster or webcaster produces itself or has produced by another party’.
24.      The management licence of AKM covers the management of ‘works of music and works of language associated with works of music … for the purposes of exercising or managing
performance, contract, broadcasting and making-available rights
in recitations, concert performances and broadcasts as well as corresponding claims to participation and/or remuneration’. (8)
25.      On 7 June 2022, Austro-Mechana applied to the Supervisory Authority for a declaration that the management licence granted to it extends to reproductions
made for the purposes of broadcasting and making available to the public on large online platforms. In essence, it claimed that its licence covers the digital copies of protected content, made on the servers of online content-sharing service providers, which are incidental to, and technically required for, the communication or making available to the public of that content on those platforms. It made that claim notwithstanding the fact that those acts of communication or making available to the public fall within the scope of AKM’s management licence.
26.      By decision of 30 January 2023, the Supervisory Authority dismissed (in point 1) the application of Austro-Mechana and found (in point 2) that the management licence held by AKM already covers any such reproductions.
27.      The Supervisory Authority observed, first, that it is unclear whether the reproduction right, protected under Paragraph 15 of the UrhG, which transposes Article 2 of Directive 2001/29 into Austrian law, is affected at all by the acts or processes covered by
Paragraph 18c of the UrhG, which transposes, for its part, Article 17 of Directive 2019/790 into Austrian law. In that regard, it referred to some of the statements made by the European Commission in its guidance on that provision, (9) and emphasised that Article 17 of Directive 2019/790 and, therefore, Paragraph 18c of the UrhG deal with the right of communication or making available to the public, as defined in Article 3 of Directive 2001/29,
exclusively.
28.      It added that, even assuming that the reproduction right
is affected by the acts or processes covered by Article 17
of Directive 2019/790
and, thus, by Paragraph 18c of the UrhG, it can be deduced from the purpose of Article 17 of Directive 2019/790 that the authorisation which online content-sharing service providers are required to obtain for communicating or making available to the public protected content uploaded by users to their platforms necessarily encompasses all acts of reproduction that are technically required for that purpose. Those acts cannot be separated from the acts of communication or making available to the public, with the result that separate licensing of the reproduction right is not possible.
29.      Both Austro-Mechana and AKM lodged an appeal against that decision before the Bundesverwaltungsgericht (Federal Administrative Court), which is the referring court. In essence, they claim
that point 2 of the contested decision should be annulled without substitution and that point 1 should be amended in such a way as to grant Austro-Mechana’s application of 7 June 2022.
30.      Harbouring doubts as to the proper interpretation of the abovementioned provisions of EU law, the
Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘[(1)]      Is EU law, in particular Article 2 of Directive [2001/29], Article 17(1) of Directive [2019/790] and Article 9 of [the Berne Convention], to be interpreted as meaning that an online content-sharing service provider pursuant to Article 2[(6)] of Directive [2019/790,] which stores works and other subject matter uploaded by users, in addition to performing an act of communication to the public (or an act of making available to the public) within the meaning of Article 3 of Directive [2001/29], also performs, or is to be regarded as also performing, an act of reproduction within the meaning of Article 2 of Directive [2001/29], and must obtain separate authorisation to do so from the rightholders referred to in Article 2 of Directive [2001/29]?
[(2)]      If the first question is answered in the affirmative:
Is EU law, in particular Article 17(1) and (2) and Article 1(2) and Article 2[(6)] of Directive [2019/790], to be interpreted as meaning that an authorisation to reproduce obtained by online content-sharing service providers within the meaning of Article 2[(6)] of Directive [2019/790] also covers acts of reproduction performed by, or to be regarded as being performed by, the users of such platforms, provided that those users are not acting on a commercial basis or their activity does not generate significant revenues?
[(3)]      If the first question is answered in the negative:
Is EU law, in particular Article 2 of Directive [2001/29] and Article 17(2) of Directive [2019/790], to be interpreted as meaning that users of services offered by online content-sharing service providers within the meaning of Article [2(6)] of Directive [2019/790], in uploading copyright-protected works and subject matter for the purposes of storing and sharing them, perform acts of reproduction within the meaning of Article 2 of Directive [2001/29] and require authorisation to do so from the rightholders referred to in Article 2
of [that directive]?
[(4)]      If the first question is answered in the affirmative:
Is EU law, in particular Article 4, Article 5 and Article 16(1) and (2) of Directive [2014/26], to be interpreted as meaning that rightholders may grant the reproduction right under Article 2 of Directive [2001/29], on the one hand, and the right of communication to the public under Article 3 of the same directive, on the other hand, for the purposes of licensing under Article 17(1) and (2) of Directive [2019/790], individually and separately … to a collective management organisation (or an independent management entity), either in order to have those rights managed by different collective management organisations (or independent management entities) or in order to manage those rights individually in part?’
31.      The request for a preliminary ruling, dated 30 August 2024, was lodged at the registry of the Court of Justice on 3 September 2024. The applicants in the main proceedings, the Austrian and French Governments and the Commission submitted written observations. Those interested parties, as well as the Supervisory Authority, presented oral argument at the hearing on 8 October 2025.
IV.    Assessment
32.      Article 2 of Directive 2001/29 defines the reproduction right as the ‘exclusive right’ of authors, performers, producers and broadcasting organisations to ‘authorise or prohibit the direct or indirect, temporary or permanent reproduction by any means
and in any form, in whole or in part’ of their works, performances, phonograms, films or broadcasts.
33.      In the present case, the Court is asked to determine whether, in the context of online content-sharing services, that right applies when digital copies of protected content that are technically required to be able to give the public access to that content are made on the computer servers of the providers of those services. That requires clarifying whether such copies are reproductions, within the meaning of Article 2 of Directive 2001/29.
34.      Furthermore, assuming that the reproduction right does apply in that context, the referring court wonders whether the authorisation that online content-sharing service providers must obtain from rightholders under Article 17(1) of Directive 2019/790 to communicate or make protected content available to the public on their platforms necessarily covers the making of digital copies of that content on those service providers’ servers that are technically required for that purpose.
35.      To explain why the EU legislature introduced a specific liability regime for online content-sharing service providers in Article 17 of Directive 2019/790, it is helpful to recall one of the main objectives of Directive 2001/29, as well as the considerations that led to the adoption of that provision.
36.      As its preamble makes clear, Directive 2001/29 aims to provide
rightholders with a ‘high level of protection’ of their copyright and related rights and to ensure that they receive ‘an appropriate reward’ for the use of their works and other subject matter, in particular in the ‘information society’. (10) To that effect, that directive provides them, as I have explained in the introduction, with an exclusive right of reproduction of their protected content (Article 2) and an exclusive right of communication or making available of that content to the public (Article 3). Thus, acts falling within the scope of those rights cannot, as a rule, (11) be carried out by a third party without a prior authorisation, which usually takes the form of a licence granted against remuneration.
37.      However, shortly after the adoption of Directive 2001/29, the emergence of interactive ‘Web 2.0’ services, and, in particular, of large platforms such as YouTube,
gave rise to legal uncertainty concerning
the uploading of protected content to those platforms.
38.      At the time, the debate centred on the right of communication or making available to the public laid down in Article 3 of Directive 2001/29. While it was clear that the uploading, by a user, of a work or other subject matter to an online content-sharing platform constitutes an act of communication or making available to the public, requiring, as a rule, the prior authorisation of the rightholder(s) concerned, controversy arose as to whether the operator of that platform was
itself carrying out such an act when giving the public access to that content
and, therefore,
whether it was required to conclude licensing agreements or remunerate rightholders. Rightholders, for their part, voiced concerns (12) that online content-sharing service providers were incentivising users to upload protected content to their online platforms
and were deriving considerable revenue
from that content, through advertising or subscriptions, without seeking authorisation from
or providing remuneration to the rightholders. This is known as the ‘value gap’ argument. (13)
39.      Uncertainty also surrounded the scope of the ‘safe harbour’ laid down in Article 14(1) of Directive 2000/31. That provision exempted, subject to certain conditions, the providers of ‘hosting services’ from liability that may derive from the protected content that they host for their users. There too, it was unclear whether that provision ‘shielded’ online content-sharing service providers such as YouTube, Soundcloud and Pinterest from copyright liability for the communication to the public of protected content uploaded by their users. (14)
40.      In order to dispel that legal uncertainty, the EU legislature decided to address that issue in Directive 2019/790, (15) specifically in Article 17 thereof.
41.      As I have explained in the introduction, first, paragraph 1 of that article provides that online content-sharing service providers themselves carry out an act of communication or making available to the public, within the meaning of Article 3 of Directive 2001/29, when they give the public access to protected content uploaded by their users. (16) That triggers an obligation for those providers to obtain an authorisation from the relevant rightholders, typically by concluding a licensing agreement. Furthermore, Article 17(3) of Directive 2019/790 excludes, in such a scenario, the application of the ‘safe harbour’ laid down in Article 14(1) of Directive 2000/31.
42.      Second, Article 17(2) of Directive 2019/790 makes clear that users of online content-sharing services also perform acts of communication or making available to the public when uploading protected content to the online platforms of the providers of those services. Nevertheless, where those providers obtain an authorisation, for example by concluding a licensing agreement pursuant to Article 17(1) of that directive, such an authorisation also covers those acts, provided that the users concerned are not acting on a commercial basis or that their activity does not generate significant revenues.
43.      The specific liability regime (17) established by Article 17 of Directive 2019/790 is intended to consolidate the ‘high level of protection’ enjoyed by rightholders over their protected content (18) and, in particular, to ensure that they
obtain better remuneration for the use of that content on online content-sharing platforms. At the same time, it seeks to strike a ‘fair balance’ between the rights and interests of those rightholders and those of online content-sharing service providers and their users, in particular by providing legal certainty for those service providers. (19)
44.      However, neither Article 17(1) of Directive 2019/790 nor the other paragraphs of that article expressly refer to the reproduction right granted to rightholders under Article 2 of Directive 2001/29 or, for that matter, to the making of digital copies of protected content
on the servers of online content-sharing service providers that are technically required
in order to give the public access to that content.
45.      Thus, the uncertainty that previously surrounded the right of communication or making available to the public now re-emerges in relation to the reproduction right.
46.      Against that background, I will start by explaining why such digital copies constitute ‘reproductions’, within the meaning of Article 2 of Directive 2001/29, and therefore fall within the scope of the exclusive reproduction right of rightholders (the first part of Question 1)(section A). I will then set out the reasons why I consider that the authorisation which online content-sharing service providers must obtain from rightholders under Article 17(1) of Directive 2019/790, for the purpose of communicating or making protected content
available to the public, necessarily extends to the making of digital copies of that content on their servers that are technically required in order to give the public access to the said content (the second part of Question 1)
(section B). Furthermore, I will explain why that authorisation also covers, pursuant to Article 17(2) of Directive 2019/790, the acts of reproduction carried out by the users of online content-sharing services, so that those users do not need to obtain a separate authorisation for those acts, provided that they are not acting on a commercial basis or that their activity does not generate significant revenues (Questions 2 and 3) (section C). Finally, I will briefly address the issue of whether rightholders may entrust the management of their rights to different collective management organisations (Question 4) (section D).
47.      Before doing so, however, I should explain why the scope of the present Opinion is limited in two important respects. First, the questions referred by the national court are confined to the specific context of the uploading of protected content to the platforms of online content-sharing service providers falling within the scope of Article 17 of Directive 2019/790. The first paragraph of Article 2(6) of Directive 2019/790 defines an online content-sharing service provider as ‘a provider of an information society service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organises and promotes for profit-making purposes’. It follows, in particular from the use of the term ‘large’, that Article 17 concerns the major operators of content-sharing platforms, such as YouTube, Soundcloud or Pinterest and excludes others. (20) Accordingly, my analysis will not concern digital copies made in the course of making protected content available online either by individuals on their own websites or via intermediary services not covered by that provision. (21)
48.      Second, the legal issues raised by the present case relate to the specific context of the making, on the computer servers of online content-sharing service providers, of digital copies of protected content that are technically required in order to give the public access to that content. The present Opinion is not concerned with reproductions made on the servers
of users of online content-sharing services, their other IT devices or online-storage accounts, in particular in the cloud. (22)
A.      Whether technically required digital copies made on the servers of online content-sharing service providers constitute reproductions, falling within the scope of the reproduction right protected under Article 2 of Directive 2001/29 (the first part of Question 1)
49.      As the Commission explained at the hearing, when a user presses the ‘upload’ button on an online content-sharing platform, the corresponding file is divided into ‘packets’. Those packets are transmitted over the internet via routers and, once they reach the data centres of the relevant online content-sharing service provider, reassembled on its servers, where the file is reconstructed before being shared online. In that process, digital copies of the file are automatically created, (23) as an integral part of the process of the communication or making available of the protected content to the public on the relevant platform. As I understand it, the sole purpose of those copies is to enable that content to be shared online with the public.
50.      In my view, it is clear that the digital copies of protected content thus made on the servers of online content-sharing service providers constitute reproductions, falling with the scope of the exclusive right laid down in Article 2 of Directive 2001/29.
51.      First, the Court has already confirmed, in other contexts, that that right
covers the making and storage of digital copies of protected content on computer servers, since it applies to reproductions
‘by any means and in any form’
of protected content. (24)
52.      That
interpretation is consistent with the first provision recognising the reproduction right in international law, namely Article 9 of the Berne Convention. In that regard, the
agreed
statement
concerning
Article 1(4)
of
the World Intellectual Property Organization (WIPO) Copyright
Treaty (25) provides that
‘the
storage
of
a
protected
work
in
digital
form
in
an
electronic
medium constitutes
a
reproduction
within
the
meaning
of
Article 9
of
[the Berne convention]’. I note that the European Union is not itself a party to the Berne Convention, which, under Article 29(1) thereof, is open only to
States and not to international organisations. However, the European Union has undertaken to comply with the substantive provisions (Articles 1 to 21) of that convention pursuant to Article 9(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (26) and Article 1(4) of the WIPO Copyright Treaty. (27)
53.      Second, under the deliberately broad conception adopted by the EU legislature in Article 2 of Directive 2001/29, the reproduction right applies not only to reproductions
‘by any means and in any form’, but also irrespective of whether those reproductions are ‘direct or indirect, temporary or permanent’. Accordingly, 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.
54.      In that regard, I note, however, that Article 5(1) of Directive 2001/29 provides, subject to strict conditions, for an exemption in respect of ‘temporary acts of reproduction … which are transient or incidental [and] an integral and essential part of a technological process’. (28) That exemption applies only if five cumulative conditions are satisfied, namely where the act in question:
–        is temporary;
–        is transient or incidental;
–        forms an integral and essential part of a technological process;
–        has the sole purpose of enabling a transmission in a network between third parties by an intermediary, or a lawful use, of protected content; and
–        has no independent economic significance. (29)
55.      While it is clear from the case-law that those five conditions must be interpreted strictly, (30) the Court has nevertheless
held that temporary acts of reproduction, carried out within the memory of the satellite decoder and on the television screen, (31) as well as on-screen copies and the cached copies made by an end-user, in the course of viewing a website, (32) may be regarded as fulfilling them all.
56.      Like the applicants, the Austrian and French Governments and the Supervisory Authority, I consider that the same cannot be said of digital copies such as those at issue in the main proceedings. As the Supervisory Authority explained at the hearing, such copies are not temporary, since they may well remain stored on the servers of online content-sharing service providers for years.
57.      In the light of those considerations, I am of the view that the exemption from the reproduction right provided for in Article 5(1) of Directive 2001/29
is not applicable to the making, on the servers of online content-sharing service providers, of digital copies of protected content that are technically required in order to give the public access to that content.
58.      Third, I would add that there is nothing in Directive 2001/29 to suggest that, in such a situation, the right of communication or making available to the public, under Article 3 thereof, should ‘pre-empt’ the application of the reproduction right protected under Article 2, in the sense that that right would no longer be relevant.
59.      To begin with, I agree with the applicants that any form of ‘grouping’ of different exclusive rights – in the present context, the reproduction right and the right of communication or making available to the public – would run counter to Article 2 of Directive 2001/29, as well as, inter alia, to Article 9 of the Berne Convention, both of which identify the reproduction right as an exclusive right, distinct from the right of communication or making available to the public.
60.      Furthermore, as the French Government observes, recital 23 of Directive 2001/29 states that
‘[the communication of a work to the public]
does not cover any other acts’. I understand this to mean that a finding that the right of communication or of making available to the public applies in a given situation does not preclude the concurrent application of other exclusive rights, including the reproduction right.
61.      Contrary to what the Commission submits, no different conclusion follows from the Court’s earlier judgments, in particular in Renckhoff, (33)YouTube and Cyando or Poland v Parliament and Council.
62.      As the applicants and the Austrian and French Governments correctly point out, the reason why the Court did not address the reproduction right or Article 2 of Directive 2001/29 in those cases is simply that the questions referred did not concern that right or that provision. In the case which led to the judgment in
Renckhoff, the referring court asked the Court of Justice to interpret the right of
communication or making available to the public
only. In the case which led to the
judgment in
YouTube and Cyando, the issue concerned the liability for the uploading and sharing of content on the websites of the service providers at issue, under the regime that applied prior to the adoption of Article 17 of Directive 2019/790. Finally, in the case which led to the judgment in
Poland v Parliament and Council, the Court was called upon to assess the compatibility of certain aspects of that liability regime with the fundamental right to freedom of expression under Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’). No inference can therefore be drawn from those judgments as regards the scope of the reproduction right.
63.      Finally, the Court has consistently maintained a clear distinction between the reproduction right and the right of communication or making available to the public in its case-law, and has already confirmed that both rights may apply in parallel. For example, it has held that any communication resulting from the sharing of a work by a user of a cloud storage service
constitutes an act of exploitation that is distinct from the act of reproduction referred to in Article 2(a) of Directive 2001/29 and
which may fall within the scope of Article 3(1) of that directive, if the relevant conditions are satisfied. (34)
64.      In the light of the foregoing, it is clear to me that the uploading of protected content to the platform of an online content-sharing service provider entails not only acts of communication or making available to the public, within the meaning of Article 3 of Directive 2001/29, but also acts of reproduction falling within the scope of Article 2 thereof. Where such acts of reproduction are carried out without the authorisation of the relevant rightholders, they are therefore capable of giving rise to an infringement of a distinct exclusive right, namely the reproduction right, which is separate from the right of communication or making available to the public.
B.      Whether online content-sharing service providers should obtain an authorisation for the digital reproductions at issue, distinct from the one that they need for giving access to the public to the protected content in question (the second part of Question 1)
65.      I shall now turn to the question whether the authorisation which online content-sharing service providers must obtain from rightholders, pursuant to Article 17(1) of Directive 2019/790, in respect of the communication or making available of protected content to the public, within the meaning of Article 3 of Directive 2001/29, also covers the reproductions which occur, under Article 2 of that directive, when digital copies of that content that are technically required in order to share the content with the public are made on their servers.
66.      Three distinct lines of argument have been advanced before the Court in that regard.
67.      First, the Supervisory Authority and the Commission take the view that, within the context of the application of Article 17 of Directive 2019/790, the reproduction right cannot be exercised independently of the right of communication or making available to the public. Accordingly, the authorisation which online content-sharing service providers must obtain under paragraph 1 of that article necessarily extends to the making of such copies.
68.      Second, the applicants argue that, while the specific liability regime provided for in Article 17 of Directive 2019/790 does apply to the making of digital copies of protected content on the servers of online content-sharing service providers that are technically required in order to give the public access to that content, those service providers must nevertheless obtain
a separate authorisation for those reproductions, distinct from the authorisation expressly referred to in paragraph 1 of that article. In their view, adopting the solution advocated by the Supervisory Authority and the Commission would amount to a ‘de facto abolition’ of the reproduction right, contrary to Article 17(2) of the Charter, which states that ‘intellectual property shall be protected’.
69.      Third, the Austrian and French Governments contend that Article 17 of Directive 2019/790 does not apply to the making of such copies at all, since that provision concerns only acts of communication or of making available to the public. Consequently, the liability of online content-sharing service providers for the digital copies of protected content made on their servers that are technically required to be able to give the public access to that content would have to be assessed exclusively under the general liability regime, that is to say, the rules laid down in Directive 2001/29. In that regard, the French Government recalls that the Court has consistently held that Article 2 of that directive must be interpreted as meaning that, subject to the exceptions and limitations laid down in Article 5 of that directive, any act of reproduction of a work by a third party requires the prior consent of the relevant rightholder. (35) According to that government, allowing such providers to make digital copies of protected content without a specific authorisation from the relevant rightholder, distinct from that required under Article 17 of Directive 2019/790, would be tantamount to introducing a new, unwritten ‘exemption’ or ‘limitation’ to the reproduction right protected under Article 2 of Directive 2001/29.
70.      At this juncture, I note, as the Supervisory Authority previously observed before the referring court, (36) that, in its guidance on Article 17 of Directive 2019/790, the Commission stated –
without, it must be said, providing any real explanation – that ‘the acts of communication to the public and making content available in Article 17(1) should be understood as also covering reproductions necessary to carry out these acts’ (37) and that ‘Member States should not provide for an obligation on online content-sharing service providers to obtain an authorisation for reproductions carried out in the context of Article 17’. (38) I recall, however, that the Commission’s guidance on Article 17 of Directive 2019/790 merely reflects the views of that institution and has no binding force. (39)
71.      In the following sections, I shall explain that 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 (1). 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 (2).
1.      Textual and historical analysis
72.      From the outset, I agree with the Austrian and French Governments that Article 17(1) of Directive 2019/790 refers exclusively to ‘an act of communication to the public or an act of making available to the public’. Neither that paragraph nor any other provision of Article 17 makes any reference to acts of reproduction or to the reproduction right, as defined in Article 2 of Directive 2001/29.
73.      As regards the genesis of that provision, I note that Article 13(1), third paragraph, of the consolidated Presidency compromise proposal of the Council of 23 March 2018 (40) – which subsequently became Article 17(2) of Directive 2019/790 – provided that the licensing agreements concluded between online content-sharing service providers and rightholders ‘shall cover the liability of the users of the service for acts falling within Articles 2 and 3 of Directive [2001/29] when they are not acting on a commercial basis’. (41) The reference to Article 2 of Directive 2001/29 was subsequently removed, without any explicit explanation, to the best of my knowledge, (42) during the later stages of the legislative process. The preparatory works relating to Article 17 of Directive 2019/790 contain no further indication as to its possible application to acts of reproduction within the meaning of Article 2 of Directive 2001/29.
74.      Thus, while both the text of Article 17(1) and its history are silent on the issue at hand, that silence is ambiguous. As the Commission correctly observes, the fact that Article 2 of Directive 2001/29 was referred to at one stage of the legislative process demonstrates that the EU legislature was aware of the intermediate step consisting in the making of digital copies of protected content on the servers of online content-sharing service providers.
75.      In the absence of any explanation for the subsequent removal of that reference, two opposing inferences may be drawn. It may be argued, as the Commission submits, that the EU legislature considered such a reference to be unnecessary, on the ground that those reproductions are ancillary to the communication or making available of that content to the public and, therefore, implicitly covered by the specific liability regime laid down in Article 17 of Directive 2019/790. Alternatively, as Austro-Mechana, AKM and the French Government contend, it may be argued that the right of reproduction was deliberately left outside the scope of that provision and remains subject solely to the general regime, namely the rules laid down in Directive 2001/29 (and, potentially, to the ‘safe harbour’ established by Article 14 of Directive 2014/26).
76.      As I shall explain in the following sections, I consider that the first of those interpretations is to be preferred.
2.      Contextual and teleological analysis
77.      Two provisions of Directive 2019/790 other than Article 17(1) thereof support the conclusion that that
provision does apply to the making of digital copies of protected content on the servers of online content-sharing providers, where such copies are technically required in order to give the public access to that content.
78.      First, as I have explained in point 41 above, the specific liability regime established by Article 17 of Directive 2019/790 applies to ‘online content-sharing service provider[s]’, defined in Article 2(6) of Directive 2019/790, as ‘provider[s] of an information society service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by [their] users, which [they organise and promote] for profit-making purposes’. (43) It is difficult to see why the EU legislature would have expressly referred, in that definition, to the activity of ‘storage’ if the making and storage of digital copies of protected content on the servers of online content-sharing service providers were irrelevant to that provision. (44)
79.      Second, recital 61 of Directive 2019/790 states that the specific liability regime established by Article 17 of that directive was intended to clarify, after years of debate and uncertainty, that online content-sharing service providers ‘engage in copyright-relevant acts, and need to obtain authorisation from rightholders for content uploaded by their users’. (45) That recital suggests that Article 17(1) was designed to shield those service providers from liability for infringements of rightholders’ exclusive rights, broadly understood, provided that they have obtained an authorisation.
80.      As regards the objectives pursued by the specific liability regime established by Article 17 of Directive 2019/790, I recall, as noted in point 43 above, that it seeks to consolidate the ‘high level of protection’ that rightholders enjoy over their protected content. It does so by fostering the development of ‘the licensing market between rightholders and [online content-sharing] service providers’. (46) In that way, it aims to enable rightholders to obtain better remuneration for the use of protected content on the platforms of those service providers
and to contribute to ‘a well-functioning and fair marketplace for copyright’. (47) At the same time, that specific liability regime also seeks to ensure a ‘fair balance’ between the rights and interests of rightholders, on the one hand, and those of online content-sharing service providers and their users, on the other.
81.      More specifically, recital 61 of Directive 2019/790 emphasises that licensing agreements should be fair and maintain a reasonable balance between the parties (rightholders and online content-sharing service providers), (48) while recital 70 thereof underlines the importance of guaranteeing, in the specific context of online content-sharing services, the freedom of expression of users and of ‘striking a balance between the fundamental rights laid down in the [Charter], in particular the freedom of expression and the freedom of the arts, and the right to property, including intellectual property’. (49)
82.      In the light of those objectives, it seems to me that, if the authorisation which online content-sharing service providers must obtain, pursuant to Article 17(1) of Directive 2019/790, did not extend to the making of digital copies of protected content on their servers that are technically required in order to give the public access to that content, Article 17 of that directive would be deprived of its effectiveness.
83.      First, from the perspective of the online content-sharing service providers, Article 17(1) of Directive 2019/790 refers solely to ‘an authorisation … to communicate to the public or make available to the public works or other subject matter’. If the Court were to conclude that the making of digital copies of protected content on the servers of those service providers that are technically required to be able to give the public access to that content can be made subject to a separate authorisation, not mentioned anywhere in Article 17, a significant degree of legal uncertainty for online content-sharing service providers would arise. I recall, in that connection, that, as noted in point 40 above, the EU legislature sought, inter alia, to reduce the legal uncertainty surrounding the liability of those service providers for protected content uploaded by users when it adopted that provision. I understand that it did not intend to address only part of that liability (that is to say, only the liability of online content-sharing service providers for acts of communication or making available to the public, to the exclusion of acts of reproduction technically required for that purpose).
84.      Moreover, if the authorisation required under Article 17(1) of Directive 2019/790 did not cover the making of such digital copies, that authorisation would, in practice, become useless. Those service providers could still face claims from rightholders for infringements of their exclusive reproduction right, as protected under Article 2 of Directive 2001/29, simply because digital copies of protected content are automatically made on their servers whenever a user uploads such protected content.
85.      It follows that, from the perspective of legal certainty, the only coherent solution is that the authorisation required under Article 17(1) of Directive 2019/790 necessarily covers such copies.
86.      Second, from the perspective of rightholders, if the authorisation required under Article 17(1) of Directive 2019/790 did not extend to the making of such copies, the objective of ensuring better remuneration for the use of protected content on online content-sharing platforms would be seriously compromised. Online content-sharing service providers would have little incentive to seek such authorisation, since they could, in any event, be exposed to liability for acts of reproduction not covered by it.
87.      In addition, the question of those service providers’ liability for such acts of reproduction would revive, in essence, the same uncertainties that the Court addressed in the judgment in YouTube and Cyando in relation to the right of communication or making available to the public, at a time when the specific regime established by Article 17 of Directive 2019/790 did not yet apply. In particular, would the provider be primarily liable under Article 2 of Directive 2001/29? Could it rely on the ‘safe harbour’ established by Article 14(1) of Directive 2000/31? (50) Depending on the answer, online content-sharing service providers could face full liability or no liability at all.
88.      I recall that, in that judgment, (51) the Court held, as regards the first question, that potentially illegal content is, in principle, uploaded to the platform concerned not by the operator, but by users, acting autonomously, and that the operator’s own liability depends on the extent and the deliberate nature of its intervention in the communication. It added that the mere fact that the operator is generally aware that protected content is made available illegally on its platform is not sufficient to conclude that it intervenes with the purpose of giving internet users access to that content.
89.      As regards the second question, the Court did not exclude, in the judgment in YouTube and Cyando, that Article 14(1) of Directive 2000/31 might apply to online content-sharing service providers. (52) That provision, read in conjunction with Article 15(1) of that directive, (53) established that providers of hosting services are not subject to a general monitoring obligation and are required, in essence, to act upon notice from rightholders by removing or disabling access to illegal content (‘notice and take down’). (54)
90.      That solution was considered by the EU legislature, when adopting Directive 2019/790, to be insufficiently protective of rightholders. (55) That is why Article 17(4)(b) and (c) of Directive 2019/790 requires
online content-sharing service providers, in essence, to prevent infringing content from being uploaded or re-uploaded in the first place, by means of ex ante measures, consisting in automatic filtering tools designed to review the content uploaded by users prior to its dissemination to the public, (56) rather than simply removing it after the event.
91.      In the light of the foregoing, the position advanced by the French Government, which invites the Court to adopt an approach
protective of rightholders, appears to be that the EU legislature intended the acts of reproduction at issue in the main proceedings to remain subject to the general liability regime (that is to say, to the rules applicable outside Article 17 of Directive 2019/790), but not to Articles 14 and 15 of Directive 2000/31, so that online content-sharing service providers would incur liability, under Article 2 of Directive 2001/29, in respect of the digital copies of protected content made on their servers that are technically required to give the public access to that content, unless they had obtained a specific authorisation from the rightholder or one of the exceptions or limitations laid down in Article 5 of Directive 2001/29 applied.
92.      However, I find no textual support for such an approach in any of the relevant instruments (Directive 2000/31, Directive 2001/29 or Directive 2017/790). Furthermore, the French Government’s position amounts, in essence, to maintaining, on the one hand, that the EU legislature did not mean for the specific liability regime established by Article 17 of Directive 2019/790 to apply to the acts of reproduction at issue, while, on the other hand, assuming – without any legal basis – that it did intend for paragraph 3 of that article, which provides that ‘when an online content-sharing service provider performs an act of communication to the public or … of making available to the public …, the limitation of liability established in Article 14(1) of Directive [2000/31] shall not apply …’, to apply to those acts by analogy.
93.      In my view, it is clear that Article 17(3) of Directive 2019/790 could be applied to the making of digital copies of protected content on the servers of online content-sharing service providers only if Article 17(1) of that directive was itself understood by the EU legislature as meaning that the authorisation which those providers must obtain under that provision, in order to communicate or make protected content available to the public, necessarily extends to the making of such digital copies.
94.      Only that interpretation made it possible to dispense entirely, in the context of online content-sharing services, with the ‘notice and take down’ system referred to in point 89 above and to preserve the effectiveness of the obligation, laid down in Article 17(4)(b) and (c) of Directive 2019/790, which requires the providers of those services to adopt preventive, automated measures in the form of automatic filtering tools. It is difficult to conceive that the EU legislature could have intended, on the one hand, to require those providers to remove and prevent the future upload of infringing content detected by automatic filtering tools and, on the other hand, to require the removal of digital copies of that same content only upon notice from the relevant rightholder.
95.      Finally, as regards the interest of rightholders in safeguarding the economic value of their exclusive reproduction right, I consider that that value can, in any event, be negotiated and reflected in the authorisation that online content-sharing service providers are required to obtain from rightholders pursuant to Article 17(1) of Directive 2019/790. No separate authorisation for that right is therefore necessary.
96.      Third, from the perspective of users of online content-sharing services, I recall that the specific liability regime laid down in Article 17 of Directive 2019/790 is also intended to protect the interests and rights of those users when they upload protected content to the platforms of the providers of those services.
97.      From a technical standpoint, it is common ground that the making of digital copies of protected content on the servers of online content-sharing service providers is initiated by the users of those services, when they press the upload button. Those users must therefore also be regarded as carrying out acts of reproduction, within the meaning of Article 2 of Directive 2001/29. As I have explained in point 42 above, Article 17(2) of Directive 2019/790 makes clear that users themselves perform acts of communication or making available to the public within the meaning of Article 3 of Directive 2001/29, when they upload protected content to those providers’ online platforms.
98.      Nevertheless, Article 17(2) of Directive 2019/790 also states that, where an online content-sharing service provider has obtained an authorisation from a rightholder, under Article 17(1) of Directive 2019/790, such an authorisation ‘shall also cover acts carried out by users of the services falling within the scope of Article 3 of Directive [2001/29]’, provided that ‘they are not acting on a commercial basis or where their activity does not generate significant revenues’. Consequently, in such a situation, users do not themselves need to obtain an authorisation and may freely upload the protected content concerned.
99.      As regards acts of reproduction, falling within the scope of Article 2 of Directive 2001/29, I note that Article 17(2) of Directive 2019/790 does not refer to them expressly. However, recital 69 of Directive 2019/790, which is formulated in broader terms than that provision, states that the authorisations obtained by online content-sharing service providers should cover ‘the copyright relevant acts in respect of uploads by users within the scope of the authorisation granted to the service providers’. (57) That general reference to ‘copyright relevant acts’, and not only to acts of communication or making available to the public, supports the view that the scope of Article 17(2) of Directive 2019/790 is not necessarily limited to ‘acts carried out by users of the services falling within the scope of Article 3 of Directive [2001/29]’, but could extend to acts of reproduction carried out by them.
100. In any event, I agree with the applicants that requiring users systematically to obtain themselves a separate authorisation for the making of digital copies on the servers of online content-sharing service providers would not only give rise to significant practical difficulties, but would also create a situation in which a user could upload protected content in the belief that he or she is ‘covered’ by the licence obtained by the provider, only to face a copyright liability claim for the technically required copies made during that process. Such a result would jeopardise the protection of users’ freedom of expression on online platforms, as guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) and Article 11 of the Charter, as well as the freedom of the arts enshrined in Article 13 thereof.
101. In that regard, I recall that both Directive 2001/29 and Directive 2019/790 pursue the objective of ensuring a high level of protection for rightholders. (58) At the same time, those instruments also make clear that rightholders do not enjoy an absolute monopoly over the use of their works or other subject matter. Indeed, as I have explained in points 54 and 69 above, Article 5(1),(2) and (3) of Directive 2001/29 provides
an exemption and a set of exceptions and limitations to, inter alia, the exclusive right of reproduction. That exemption and those exceptions and limitations seek to ensure a ‘fair balance’ between, on the one hand, the rights and interest of rightholders in the protection of their intellectual property and, on the other, the protection of the interests and fundamental rights of users of protected content, as well as the public interest, (59) including public access to culture.
102. In particular, given the importance of the services referred to in Article 17 of Directive 2019/790 to the freedom to receive and impart information and ideas, the Court has confirmed that the uploading of protected content to online content-sharing platforms falls within the scope of the exercise of the right to freedom of expression. (60) That remains so irrespective of the fact that that content may infringe copyright, since the mere fact that information is protected by copyright does not automatically exclude it from the scope of freedom of expression. (61)
103. The right to freedom of expression is enshrined in Article 11 of the Charter and ‘shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’. It corresponds to the right guaranteed by Article 10 ECHR. (62)
104. According to the settled case-law of the ECtHR on Article 10 ECHR, the internet has become one of the principal means by which individuals exercise their right to freedom of expression and information. In view of their accessibility and their capacity to store and disseminate vast amounts of information, internet sites, and in particular online content-sharing platforms, play a central role in enhancing the public’s access to news and in facilitating the communication of information in general. User-generated expressive activity on the internet thus provides an unprecedented platform for the exercise of freedom of expression. (63) That is especially true in respect of large social networks and platforms, such as YouTube, which undoubtedly constitutes an important means of exercising the freedom to receive and impart information and ideas. (64)
105. In light of those considerations, I take the view – contrary to the applicants – that the reproduction right, like the other intellectual property rights protected under Article 17(2) of the Charter, is not absolute and must be balanced, inter alia, against the right to freedom of expression enjoyed by users of online platforms under Article 10 ECHR and Article 11 of the Charter.
106. I would add that the Court has repeatedly held that ‘there is nothing whatsoever in the wording of Article 17(2) of the Charter [which states that “intellectual property shall be protected”] to suggest that the right to intellectual property is inviolable and must for that reason be absolutely protected’. (65)
107. More plainly, if, within the specific liability framework established by Article 17 of Directive 2019/790, the making of digital copies of protected content that are technically necessary in order to give the public access to that content were to require an additional authorisation beyond that which online content-sharing service providers must already obtain under paragraph 1 of that provision, rightholders would, in practice, be able to prevent the online communication or availability of the content. They could rely, in that regard, on the absence of an authorisation for those acts of reproduction, even where all the conditions expressly laid down in that provision are satisfied. Such an outcome would, in my view, clearly undermine the fair balance which, as I have explained in point 43 above, the EU legislature sought to ensure when adopting Article 17 of Directive 2019/790.
108. Having regard to all those elements, I consider, as the Commission submitted at the hearing, that the reason why the EU legislature, in Article 17 of Directive 2019/790, focused
on the act of communication or of making available to the public, as defined in Article 3 of Directive 2001/29, without expressly mentioning
the making of digital copies of protected content on the servers of online content-sharing service providers that are technically required for that purpose, is not that it intended to exclude such copies from the scope of Article 17 of Directive 2019/790. Rather, from the legislature’s perspective, their inclusion was self-evident.
109. That interpretation is, moreover, consistent with the fact that the digital copies of protected content at issue in the main proceedings are technically required
in order to give the public access to that content. The acts of reproduction and of communication or making available to the public which occur during the upload of protected content to an online platform
form part of
a single process
which begins as soon as a user presses the upload button. Since the objective of that process is, ultimately, to share the protected content online with the public, it seems to me, as I have already explained in the previous section, that the former acts (the acts of reproduction) are incidental to the latter (the acts of communication or making available to the public). (66)
110. It follows that, within the context of the specific liability regime established by Article 17 of Directive 2019/790, the making of digital copies of protected content on the servers of online content-sharing service providers that are technically necessary to give the public access to that content cannot, in my view, be made subject to an authorisation other than that which those service providers must already obtain under paragraph 1 of that article.
C.      Whether users of online content-sharing services need to obtain a separate authorisation for the making of digital copies on the service providers’ servers (Questions 2 and 3)
111. By the second and third questions, the referring court asks, in essence, whether the users of online content-sharing services must themselves obtain an authorisation for the making of digital copies of protected content on the servers of the service providers where such copies are technically required in order to give the public access to that content. More specifically, that court seeks to ascertain whether Article 17(2) of Directive 2019/790 applies in that situation. That provision states that ‘where an online content-sharing service provider obtains an authorisation, for instance by concluding a licensing agreement, that authorisation shall also cover acts carried out by users of the services falling within the scope of Article 3 of Directive [2001/29] when they are not acting on a commercial basis or where their activity does not generate significant revenues’. (67)
112. As I have already stated in point 97 above, the making of digital copies of protected content on the servers of online content-sharing service providers is initiated by the users of those services, when they press the upload button in respect of the content in question. Consequently, those users must be regarded as carrying out not only an act of communication to the public within the meaning of Article 3 of Directive 2001/29, but also an act of reproduction within the meaning of Article 2 of that directive.
113. If Article 17(1) of Directive 2019/790 did not cover the making of digital copies of protected content on the servers of online content-sharing service providers, the reasoning of the Court in the judgment in
YouTube and Cyando, outlined in point 88 above, would, in my view, apply by analogy. It would follow that protected content would have to be regarded as being uploaded to the platform concerned not by the operator, but by users,
who would therefore be required to obtain an authorisation for making such digital copies themselves.
114. Nevertheless, for the reasons set out in the previous section, I consider that, just as the authorisation which online content-sharing service providers must obtain under Article 17(1) of Directive 2019/790, for the purpose of communicating or making protected content available to the public, necessarily covers the making of digital copies of that content on their servers, where such copies are technically required for that purpose, the same is true of Article 17(2) of that directive. In other words, that provision governs the question of the liability of users of online content-sharing services not only in respect of acts falling within the scope of Article 3 of Directive 2001/29 (namely, acts of communicating or making protected content available to the public), but also in respect of acts of reproduction, consisting in the making of digital copies of protected content on the servers of online content-sharing service providers that are technically required for those acts to be carried out.
D.      Whether rightholders can entrust the management of their exclusive rights under Article 2 and Article 3 of Directive 2001/29 to separate collective management organisations (Question 4)
115. By the fourth question, the referring court asks, in essence, whether, pursuant to Article 4, Article 5 and Article 16(1) and (2) of Directive 2014/26, rightholders may grant, for the purposes of licensing under Article 17(1) and (2) of Directive 2019/790, the reproduction right under Article 2 of Directive 2001/29, on the one hand, and the right of communication to the public under Article 3 of that directive, on the other, individually and separately, with the consequence that those rights may be managed by different collective management organisations.
116. That question echoes the situation in the main proceedings, in which, on the one hand, Austro-Mechana is responsible for managing, inter alia, the rightholders’ reproduction right under Article 2 of Directive 2001/29, while, on the other hand, AKM is in charge of managing their right of communication or making available to the public under Article 3 of that directive. The referring court thus seeks to ascertain, in essence, whether such a ‘division of labour’ is compatible with Directive 2014/26, which governs the collective management of copyright and related rights.
117. For the reasons set out in the preceding sections, I consider that there is no need to answer that question. However, should the Court depart from that view and find, in essence, that online content-sharing service providers are required, first, to obtain a licence for the communication to the public of protected content uploaded by users, pursuant to Article 17(1) of Directive 2019/790, read in conjunction with Article 3 of Directive 2001/29, and, second, to obtain a licence for the reproductions (digital copies) made on their servers in order to make that content available to the public, pursuant to Article 2 of Directive 2001/29, I will address that issue briefly for the sake of completeness.
118. Directive 2014/26 is, as the applicants observe, based on the principle of freedom of choice. Recital 19 of that directive states that ‘collective management of copyright and related rights should entail a rightholder being able freely to choose a collective management organisation for the management of his rights, whether those rights be rights of communication to the public or reproduction rights …’. Likewise, Article 5(2) of Directive 2014/26 provides that ‘rightholders shall have the right to authorise a collective management organisation of their choice to manage [their] rights’. (68)
119. Article 5(7) of Directive 2014/26 further provides that, ‘in cases where a rightholder authorises a collective management organisation to manage his rights, he shall give consent specifically for each right…which he authorises the collective management organisation to manage’. In the light of that provision, a collective management organisation may not, in principle, negotiate, on behalf of a rightholder, a licensing agreement covering not only the right of communication to the public but also the reproduction right, unless the rightholder has given his or her express and specific consent in respect of the latter right.
120. It follows, in my view, that rightholders may entrust the management of their reproduction right under Article 2 of Directive 2001/29 to one collective management organisation, and the management of their right of communication or making available to the public under Article 3 of that directive to another.
121. That said, if the Court agrees with the solution which I propose as regards the first three questions, it would follow that, in the specific context of the uploading of protected content to online content-sharing platforms, only the collective management society responsible for managing the right of communication or making available to the public of the rightholder concerned could negotiate a licence or authorisation in respect of that right. Such a licence or authorisation would also necessarily cover the reproduction right, as protected under Article 2 of Directive 2001/29, in so far as that right is exercised in respect of the digital copies of protected content made on the servers of online content-sharing service providers that are technically required in order to give the public access to that content.
E.      Post-scriptum
122. I wish to conclude my analysis by recalling that, pursuant to Article 17(4) of Directive 2019/790, where no authorisation is granted pursuant to Article 17(1) of that directive, online content-sharing service providers can nevertheless be exempted from liability for unauthorised acts of communication and making available protected content to the public, provided that certain cumulative conditions are satisfied. Those conditions include, under Article 17(4), points (b) and (c), of Directive 2019/790, the obligation to demonstrate, inter alia, that those service providers made best efforts to ensure the unavailability of that content and to prevent future uploads to
their platforms, which, in practice, entails the use of automated filtering tools. (69)
123. For the reasons set out, in essence, in point 94 above, I consider that that exemption likewise applies to the making of digital copies of protected content on the servers of online content-sharing service providers where such copies are technically necessary to enable public access to that content. In such circumstances, however, the obligation to make best efforts would, in my view, require the service providers to remove any digital copy of the file concerned from their servers as soon as automated filtering tools identify that file as infringing copyright or related rights.
V.      Conclusion
124. In the light of all of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Bundesverwaltungsgericht (Federal Administrative Court, Austria) as follows:
(1)      Article 2 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
must be interpreted as meaning that the making of digital copies of works or other subject matter on the computer servers of online content-sharing service providers that are technically required in order to give the public access to those works or other subject matter on the online platforms operated by those service providers constitute ‘reproductions’, falling within the scope of the exclusive reproduction right protected under that provision. The exemption for ‘temporary acts of reproduction … which are transient or incidental [and] an integral and essential part of a technological process’, provided for in Article 5(1) of that directive, does not apply.
(2)      Article 17(1) of Directive (EU) 2019/790
of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market
and amending Directives 96/9/EC and 2001/29/EC
must be interpreted as meaning that it applies to the making of digital copies of works or other subject matter on the servers of online content-sharing service providers that are technically required in order to give the public access to those works or other subject matter. The authorisation which those service providers must obtain from rightholders under that provision in order to communicate to the public or make available to the public works or other subject matter necessarily covers the making of such copies, which cannot be made subject to a separate authorisation.
(3)      Article 17(2) of Directive 2019/790
must be interpreted as meaning that the authorisation obtained by online content-sharing service providers under Article 17(1) of that directive also covers acts carried out by users of the services falling within the scope of Article 2 of Directive 2001/29 that are technically required in order to give the public access to works or other subject matter, when those users are not acting on a commercial basis or where their activity does not generate significant revenues.
1      Original language: English.
2      See judgment of 26 April 2022, Poland v Parliament and Council (C‑401/19, EU:C:2022:297; ‘the judgment in Poland v Parliament and Council’).
3      Directive of the European Parliament and of the Council of 17 April 2019, amending Directives 96/9/EC and 2001/29/EC (OJ 2019 L 130, p. 92).
4      Directive of the European Parliament and of the Council of 22 May 2001 (OJ 2001 L 167, p. 10).
5      See Directive of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJ 2014 L 84, p. 72).
6      Directive of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“Directive on electronic commerce”) (OJ 2000 L 178, p. 1)
7      Emphasis added.
8      Ibid.
9      See Communication from the Commission, ‘Guidance on Article 17 of Directive 2019/790 on Copyright in the Digital Single Market’, COM(2021) 288 final.
10      See recitals 4 and 10 of Directive 2001/29. Recital 9 of that directive also provides that ‘any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation’, whilst recitals 12 and 22 thereof indicate that ‘adequate protection of copyright works and [subject matter] of related rights is … of great importance from a cultural standpoint’ and that ‘the objective of proper support for the dissemination of culture must not be achieved by sacrificing strict protection of rights’.
11      That is, unless an exception or limitation to copyright applies. Most of those exceptions and limitations are enumerated in Article 5 of Directive 2001/29.
12      See ‘Commission Staff Working Document, Impact Assessment on the modernisation of EU copyright rules’ (SWD(2016) 301 final), Part 1/3, pp. 137 to 142, and Opinion of Advocate General Saugmandsgaard Øe in Joined Cases YouTube and Cyando (C‑682/18 and C‑683/18, EU:C:2020:586, points 67 to 70).
13      See the Commission’s proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market (COM(2016) 593 final), adopted on 14 September 2016 (‘the proposal for a directive’), p. 3. See, also, Grisse, K., ‘After the Storm – Examining the Final Version of Article 17 of the New Directive (EU) 2019/790’, Journal of Intellectual Property Law & Practice,
Vol. 14. No. 11, 2019, pp. 887 to 899.
14      See judgment of 22 June 2021, YouTube and Cyando
(C‑682/18 and C‑683/18, EU:C:2021:503, paragraph 106 and the case-law cited; ‘the judgment in YouTube and Cyando’).
15      See the explanatory memorandum of the proposal for a directive, in which the Commission states that that proposal aims to adapt the rules provided in Directive 2001/29 to the evolution of digital technologies (pp. 2 and 3).
16      Prior to the adoption of Directive 2019/790, the operator of a video-sharing platform or a file-hosting and -sharing platform, on which users could illegally make protected content available to the public, did not make a ‘communication to the public’ of that content, within the meaning of Article 3(1) of Directive 2001/29, unless it contributed, beyond merely making that platform available, to giving access to such content to the public in breach of copyright (see the judgment in YouTube and Cyando, paragraph 102).
17      For the rest, see Article 1(2) of Directive 2019/790, which provides that, save in certain situations, that directive is to leave intact and is in no way to affect existing rules laid down in the other directives currently in force in the area of copyright or related rights.
18      See recitals 2 and 3 of Directive 2019/790.
19      See recitals 6, 61 and 66 of that directive. See, also, Dusollier, S., ‘The 2019 Directive on Copyright in the Digital Single Market: Some Progress, a Few Bad Choices, and an Overall Failed Ambition’, Common Market Law Review
Vol. 57, 2020, p. 1008 et seq., and Rosati, E., ‘Article 17 – Use of Protected Content by Online Content-sharing Service Providers’, Copyright in the Digital Single market: Article-by-Article Commentary to the Provisions of Directive 2019/790, Oxford University Press, 2021, p. 334 et seq.
20      See the second paragraph of Article 2(6) of Directive 2019/790, which contains a non-exhaustive list of service providers to whom Article 17 of that directive does not apply.
21      In particular, since Article 17 of Directive 2019/790 is not concerned with the making of digital copies with regard to other online activities, such as the making available of protected content on search engines and by generative AI, those copies are out of the scope of the present Opinion.
In that regard, I note that there is a pending case before the Court (C‑250/25, Like Company) concerning, inter alia, the question of whether the process of training a large language model (LLM)-based chatbot constitutes an ‘act of reproduction’, within the meaning of Article 2 of Directive 2001/29, where that LLM is built on the basis of the observation and matching of patterns, making it possible for the model to learn to recognise linguistic patterns.
22      As regards acts of reproductions performed by users of internet services more generally, see, for example, Opinion of Advocate General Szpunar in Stichting de Thuiskopie (C‑496/24, EU:C:2025:749), concerning works communicated for offline use to the subscribers of an on-demand internet streaming service and saved in the memory of the subscribers’ device.
23      As explained by the Austrian Government, online content-sharing service providers usually then make additional copies of the file on servers located in different geographical locations, to ensure sufficiently fast access for all users.
24      See, to that effect, judgments of 16 July 2009, Infopaq International (C‑5/08, EU:C:2009:465, paragraph 51); of 24 March 2022, Austro-Mechana (C‑433/20, EU:C:2022:217, paragraphs 16 to 18 and the case-law cited; ‘the judgment in Austro-Mechana’); and of 11 September 2014, Eugen Ulmer (C‑117/13, EU:C:2014:2196, paragraphs 52 and 53).
25      See https://www.wipo.int/wipolex/en/text/295456. WIPO adopted, on 20 December 1996, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (‘the WPPT’). Those treaties were approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 on the approval, on behalf of the European Community, of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (OJ 2000 L 89, p. 6) and entered into force, in so far as concerns the European Union, on 14 March 2010.
26      Agreement set out in in Annex 1 C to the Agreement establishing the World Trade Organisation (WTO), signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p 1).
27      See judgments of 13 November 2018, Levola Hengelo (C‑310/17, EU:C:2018:899, paragraph 38 and the case-law cited), and of 12 September 2019, Cofemel (C‑683/17, EU:C:2019:721, paragraph 41 and the case-law cited).
28      Emphasis added.
29      Furthermore, the act in question must also satisfy the conditions laid down in Article 5(5) of that directive (see judgment of 5 June 2014, Public Relations Consultants Association, C‑360/13, EU:C:2014:1195, paragraph 53 and the case-law cited).
30      See, to that effect, judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 162 and 163 and the case-law cited).
31      See judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 180).
32      See judgment of 5 June 2014, Public Relations Consultants Association (C‑360/13, EU:C:2014:1195, paragraph 63).
33      Judgment of 7 August 2018 (C‑161/17, EU:C:2018:634).
34      See the judgment in Austro-Mechana, paragraph 32.
35      See, to that effect, the judgment in
Renckhoff, paragraph 29 and the case-law cited.
36      See point 27 above.
37      See page 6 of the Commission’s guidance on Article 17 of Directive 2019/790. Emphasis added.
38      Ibid.
39      See page 1 of that document, which indicates that it ‘is not legally binding … and fulfils the mandate given to the Commission by the Union legislature under Article 17(10) [of Directive 2019/790]’.
40      2016/0280 (COD).
41      Emphasis added. Free translation.
42      The interested parties were not able to provide any explanation when asked at the hearing.
43      Emphasis added.
44      I would add that Article 17(3) of Directive 2019/790 refers to the limitation of liability established in Article 14(1) of Directive 2000/31. As I have already explained in point 47 above, the latter provision applies to ‘hosting’, that is to say to the ‘information society service …that consists of the storage of information provided by a recipient of the service’ (emphasis added). Again, in my view, the EU legislature would not have referred, in Article 17 of Directive 2019/790, to a provision (Article 14(1) of Directive 2000/31) which concerns the activity of ‘storage’ if it did not mean for the making and storage of digital copies of protected content on the servers of online content-sharing service providers to be relevant to the specific liability regime established by that provision.
45      Emphasis added.
46      See recital 61 of Directive 2019/790. That recital also indicates that ‘as contractual freedom should not be affected …, rightsholders should not be obliged to give an authorisation or to conclude licensing agreements’.
47      See recital 3 of Directive 2019/790.
48      See, also, recital 6 of Directive 2019/790.
49      Emphasis added. That recital also indicates that ‘users should be allowed to upload and make available content generated by users for the specific purposes of quotation, criticism, review, caricature, parody or pastiche’.
50      See point 39 above.
51      Paragraphs 71, 80 and 85.
52      Paragraphs 107 to 109.
53      Article 15 of Directive 2000/31 reads as follows: ‘Member States shall not impose a general obligation on providers, when providing the services covered by [Article] … 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity’.
54      See Opinion of Advocate General Saugmandsgaard Øe in Poland v Parliament and Council (C‑401/19, EU:C:2021:613, point 48).
55      Ibid., point 53, where the Advocate General explains that the EU legislature considered, when adopting Article 17 of Directive 2019/790, that the monitoring system established by Articles 14 and 15 of Directive 2000/31 placed too heavy a burden on rightholders, as it did not allow them to effectively control the use of their works and other protected subject matter. This was particularly the case because content was often re-uploaded soon after being taken down, which forced rightholders to increase the number of notices.
56      See the judgment in Poland v Parliament and Council, paragraphs 53 and 54.
57      Emphasis added.
58      See recitals 9, 12 and 22 of Directive 2001/29, as well as recitals 4 and 10 of that directive. That objective is also stated in recitals 2 and 3 of Directive 2019/790.
59      See, inter alia, judgments of 3 September 2014, Deckmyn and Vrijheidsfonds (C‑201/13, EU:C:2014:2132, paragraph 26), and of 29 July 2019, Spiegel Online (C‑516/17, EU:C:2019:625, paragraphs 38, 42, 43 and 54).
60      See the judgment in Poland v Parliament and Council, paragraph 45. Where the content uploaded constitutes the artistic expression of the user, its posting falls within the scope of the freedom of the arts guaranteed in Article 13 of the Charter.
61      See Opinion of Advocate General Saugmandsgaard Øe in Poland v Parliament and Council (C‑401/19, EU:C:2021:613, point 74 and the case-law cited).
62      See judgment of 29 July 2019, Funke Medien NRW (C‑469/17, EU:C:2019:623, paragraph 73 and the case-law cited). By virtue of Article 52(3) of the Charter, those two provisions must therefore be understood as having the same meaning and, at the very least, the same scope, unless EU law provides more extensive protection. It follows that Article 11 of the Charter must be interpreted in the light of Article 10 ECHR and the case-law of the European Court of Human Rights (‘the ECtHR’).
63      See, to that effect, ECtHR, 1 December 2015, Cengiz and Others v.
Turkey, CE:ECHR:2015:1201JUD004822610, § 52 and the case-law cited, and ECtHR, 23 June 2020, Vladimir Kharitonov v. Russia, CE:ECHR:2020:0623JUD001079514, § 33 and the case-law cited. Both of those judgments are cited in the judgment in Poland v Parliament and Council, paragraph 46.
64      See, inter alia, ECtHR, 1 December 2015, Cengiz and Others v.
Türkiye, CE:ECHR:2015:1201JUD004822610, §§ 51 and 52.
65      See, inter alia, judgment of 27 March 2014, UPC Telekabel Wien (C‑314/12, EU:C:2014:192, paragraph 61 and the case-law cited).
66      Naturally, that does not mean that the reproduction right is less important than the right of communication or making available to the public. As I have explained in section A above, sharing protected content online with the public without the authorisation of the relevant rightholder(s)
leads to separate infringements of those distinct rights.
67      See, also, point 42 above.
68      Emphasis added.
69      See point 91 above.