The Court of Justice of the European Union (CJEU) has clarified the relationship between the right of reproduction and communication to the public when protected content is uploaded to online platforms (CJEU, judgment of 12 November 2026 – C-579/24 (case number)). Where a service provider stores works or other protected subject matter uploaded by users on its servers, this constitutes reproduction within the meaning of Article 2 of Directive 2001/29/EC. However, no additional authorisation beyond the authorisation for communication to the public or making available to the public required under Article 17(1) of Directive (EU) 2019/790 must be obtained for technically necessary copies.
Dispute over rights management for online platforms
Responsibilities of the collecting societies involved
The proceedings arose from a dispute between the Austrian collecting societies A. and B., on the one hand, and the Austrian Aufsichtsbehörde für Verwertungsgesellschaften (Supervisory Authority for Collecting Societies), on the other.
A. is a wholly owned subsidiary of B.. Both societies enter into agreements with rightholders to manage certain exclusive rights and to negotiate authorisations or licensing agreements with online content-sharing service providers on their behalf. In particular, A. manages the right of reproduction under Article 2 of Directive 2001/29, while B. is responsible for the rights of communication to the public and making available to the public under Article 3 of that Directive.
Application for a declaratory decision rejected
On 7 June 2022, A. applied to the supervisory authority for a declaration that its authorisation to manage rights also covered copies created on service providers’ servers when platform users upload protected content. This concerned reproductions serving the subsequent communication to the public or making available to the public on the respective platforms.
The supervisory authority rejected that application by decision of 30 January 2023. It found that the authorisation to manage rights already granted to B. covered the reproductions in question. The authority initially doubted whether the activities falling within Article 17 of Directive 2019/790 interfered with the right of reproduction at all. Even if that were assumed, it considered the copies technically necessary for communication to the public or making available to the public to be covered by the authorisation obtained for that purpose.
A. and B. appealed against that decision to the Austrian Bundesverwaltungsgericht (Federal Administrative Court). The supervisory authority subsequently recorded that the court had referred several questions concerning the interpretation of EU law to the CJEU. On 9 October 2024, the request was registered in the Austrian EU documentation system at the Bundeskanzleramt (Federal Chancellery) under Geschäftszahl 2024-0.669.757 (reference number).
Relevant copyright provisions
Broad right of reproduction under Article 2
Article 2 of Directive 2001/29 requires Member States to grant certain rightholders the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction, in whole or in part. It covers reproductions by any means and in any form.
The CJEU interprets the concept of reproduction broadly. This interpretation is based both on the wording of the provision and on the objective of the Directive, particularly that of ensuring a high level of protection for authors.
The international rules also support this understanding. Under Article 9 of the Berne Convention, authors generally have the exclusive right to authorise the reproduction of their works. The agreed statement concerning Article 1(4) of the WIPO Copyright Treaty classifies the electronic storage of a protected work in digital form as reproduction.
Special liability regime for platform providers
Article 17(1) of Directive 2019/790 provides that an online content-sharing service provider performs an act of communication to the public or making available to the public when it gives the public access to protected content uploaded by its users. The provider must therefore obtain authorisation from the rightholders referred to in Article 3(1) and (2) of Directive 2001/29, for example by concluding a licensing agreement.
Under Article 2(6) of Directive 2019/790, an online content-sharing service provider is a provider of an information society service whose main purpose, or one of whose main purposes, is to store and give the public access to a large amount of protected content uploaded by its users. In addition, the provider must organise and promote that content for profit-making purposes. Certain services, including not-for-profit online encyclopaedias, online marketplaces and cloud services for individual use, are excluded from this definition.
Article 17 introduces a special liability regime for the platform providers it covers. If no authorisation has been granted, providers are liable for unauthorised acts of communication to the public, including making available to the public, unless they demonstrate that the conditions set out in Article 17(4) have been met.
Storage on platform servers constitutes reproduction
Automatic creation of digital copies
During an upload, the file containing the protected content is transferred from the user’s device via the internet to the service provider’s data centres. It is then stored on the provider’s servers before it can be shared through the platform. Digital copies of the file are created automatically as part of this process.
According to the CJEU, this storage falls within the concept of reproduction under Article 2 of Directive 2001/29. This applies even though the technical purpose of the copies is to enable the communication to the public or making available to the public of the content concerned.
The provider itself performs the act of reproduction, or that act is attributable to it. The fact that the user initiates the process by activating the upload function does not alter this classification.
Exception for temporary copies not applicable
Article 5(1) of Directive 2001/29 exempts certain technical acts of reproduction from the right of reproduction. For this exemption to apply, the following cumulative conditions must be met:
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The reproduction must be temporary.
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It must be transient or incidental.
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It must constitute an integral and essential part of a technological process.
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Its sole purpose must be to enable a transmission in a network between third parties by an intermediary or a lawful use.
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It must have no independent economic significance.
The absence of even one condition precludes application of the exception. In light of the circumstances considered by the CJEU, there was nothing to indicate that the copies created on the platform servers were stored only temporarily. Rather, they may remain stored indefinitely or, in any event, for extended periods. The final assessment of this factual circumstance is a matter for the referring court.
The exception under Article 5(1) therefore does not apply, even if creating the copies is technically necessary to distribute the content through the platform concerned.
No additional authorisation for technically necessary copies
Uniform regime for platform providers
Although server storage constitutes reproduction, service providers do not need to obtain authorisation for it separately from the authorisation for communication to the public or making available to the public. According to the CJEU’s interpretation, the authorisation to be obtained pursuant to Article 17(1) of Directive 2019/790 also covers the technically necessary acts of reproduction.
Although the wording of Article 17(1) refers only to communication to the public and making available to the public, and expressly refers only to Article 3(1) and (2) of Directive 2001/29, the Court considers that the context and purpose of the provision show that the required authorisation also covers the technical copies inextricably linked to those forms of exploitation.
Article 17 is intended in particular to create a uniform liability regime for service providers. Treating server storage separately would mean that different liability regimes applied alongside one another to a single technical process. While communication to the public and making available to the public would fall under Article 17, reproduction could remain subject to national provisions implementing Articles 2 and 8 of Directive 2001/29 and, where applicable, the limitation of liability under Article 14(1) of Directive 2000/31.
According to the CJEU, such fragmentation would increase legal uncertainty. Article 17 must therefore be understood as meaning that authorisation for communication to the public or making available to the public also covers the reproductions technically necessary for those purposes.
Balancing the rights and interests concerned
The Court also relied on the balance pursued by Article 17 between the rights and interests of platform providers, rightholders and users. The special liability regime is intended to clarify the legal position of providers while strengthening the protection afforded to rightholders.
If providers do not obtain authorisation, they can avoid liability only under the conditions set out in Article 17(4). Among other things, they must make every effort to obtain authorisation and, in accordance with high industry standards of professional diligence, make every effort to ensure the unavailability of specific content identified by rightholders. Upon receiving a sufficiently substantiated notice, they must act expeditiously to disable access to or remove the content concerned and prevent its future upload.
Significance of the decision for platform users
Uploading also involves reproduction
The CJEU addressed the users’ acts separately. A person who uploads protected content to a service provider’s servers enables a digital copy to be created there. In addition to communication to the public or making available to the public, this process also constitutes reproduction under Article 2 of Directive 2001/29.
However, users do not need to obtain separate authorisation for this technically necessary reproduction. It is covered by the authorisation that the service provider must obtain from the rightholders concerned under Article 17(1) of Directive 2019/790.
Conditions under Article 17(2)
Article 17(2) extends the authorisation obtained by the platform provider to certain acts carried out by its users. This requires those users not to be acting on a commercial basis or their activity not to generate significant revenue.
The Court inferred from the legislative context that this extension does not cover only the acts governed by Article 3 of Directive 2001/29. It also includes reproductions that are technically necessary to communicate the content to the public or make it available to the public.
If users were required to obtain additional authorisation for this purpose, two different regimes would apply to a single upload process. According to the judgment, this could increase legal uncertainty and have a chilling effect on the uploading of content. In this regard, the CJEU took particular account of freedom of expression and freedom of the arts, as protected by the Charter of Fundamental Rights, as well as the right to property, including intellectual property.
Further questions left unanswered
The Bundesverwaltungsgericht also sought to ascertain whether authorisation for reproduction obtained separately would also cover acts performed by non-commercial users. A further question concerned the possibility of entrusting the right of reproduction and the right of communication to the public to different collective management organisations or of managing some of those rights individually.
Those questions had been raised only in the event that additional authorisation for reproduction was required. Since the CJEU held that there was no such separate requirement for either platform providers or users, it did not answer those questions. In particular, the Court therefore did not decide whether and to what extent the two rights may be assigned separately to different collective management organisations for licensing under Article 17.
Key findings of the CJEU
The judgment draws a precise distinction between the classification of an act and the scope of the required authorisation:
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The storage of uploaded protected content on a platform provider’s servers constitutes reproduction under Article 2 of Directive 2001/29.
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The provider itself performs that reproduction, or the reproduction is attributable to it.
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The exception for temporary technical copies under Article 5(1) of Directive 2001/29 does not apply where storage is indefinite or long-term; the factual assessment is a matter for the referring court.
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For technically necessary reproductions, the provider does not require authorisation separate from the authorisation under Article 17(1) of Directive 2019/790.
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The user’s upload also constitutes reproduction.
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No additional authorisation is required for this technically necessary act by the user either, because it is covered by the authorisation that the provider must obtain.
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The conditions under Article 17(2) of Directive 2019/790 remain relevant, particularly with regard to whether the user acts on a commercial basis or generates significant revenue.
The judgment thus concerns the scope of the authorisation to be obtained under Article 17 without negating the character of the digital copies created during an upload as reproductions. This may give rise to further questions for companies, platform providers, rightholders and collecting societies concerning the allocation of rights and licensing. MTR Legal advises clients on the legal assessment of such matters as part of its copyright law advisory services.
