AG Emiliou Advises CJEU to Rule that OCSSPs' Authorization Under Article 17 of the DSM Directive Extends to Acts of Reproduction

Key Takeaways

• AG Emiliou links storage to reproduction right
• Temporary‑copy exemption does not apply to OCSSPs
• EU Commission guidance supports broader authorization scope
• Future AI‑training disputes may hinge on this interpretation

Summary

Advocate General Emiliou urged the CJEU to interpret Article 17 of the EU DSM Directive as covering not only the communication right but also the reproduction right of online content‑sharing service providers (OCSSPs). He argued that storing user‑uploaded content creates a digital copy, which falls outside the temporary‑copy exemption and must be authorized by rightsholders. The opinion aligns with the European Commission’s guidance and contrasts with earlier CJEU cases that focused solely on communication. If adopted, the ruling will expand OCSSPs’ licensing obligations to include reproduction rights.

Pulse Analysis

The EU’s Digital Single Market (DSM) Directive was introduced to resolve lingering uncertainty around user‑uploaded‑content platforms. Article 17 obliges online content‑sharing service providers (OCSSPs) to secure licenses for the communication of copyrighted works, but the law left open whether the act of storing those works—creating digital copies—also falls within the directive’s remit. This ambiguity has prompted divergent court decisions, notably the YouTube/Cyando judgment, which focused narrowly on the communication right, leaving the reproduction right unsettled.

In his recent opinion, Advocate General Emiliou clarified that the technical act of storing user‑uploaded files constitutes a reproduction, not merely an incidental step toward communication. He emphasized that the temporary‑copy exemption of the InfoSoc Directive is inapplicable because the copies on OCSSP servers are permanent for the purpose of making the work available. By endorsing the European Commission’s guidance, the AG argues that OCSSPs must obtain comprehensive authorizations covering both communication and reproduction, ensuring that rightsholders can fully monetize their works and that platform liability remains clear.

The broader ramifications are significant for the digital media ecosystem. A CJEU ruling consistent with the AG’s view would compel platforms to renegotiate licensing agreements, potentially increasing costs for services like YouTube and TikTok. Moreover, the reasoning sets a precedent for emerging disputes, such as whether AI training datasets that involve stored copyrighted material trigger the reproduction right. Stakeholders across the content, tech, and legal sectors will be watching closely as the Court’s decision could reshape EU copyright policy for years to come.