EU Platform Copyright Rules Move Again: Emiliou Says Uploads Also Involve Reproduction, But No Separate “Second Licence” Is Needed
On 26 March 2026, Advocate General Nicholas Emiliou delivered his Opinion in Case C-579/24 Austro-Mechana and AKM, adding an important new layer to the licensing architecture for online content-sharing service providers under the EU Copyright in the Digital Single Market Directive. In his view, when users upload protected content to a platform, the process does not involve only an act of communication to the public or making available to the public; it also involves acts of reproduction in the form of digital copies made on the platform’s servers.
The real significance of the Opinion, however, is not that it creates a fresh licensing tollbooth. Emiliou also argues that the authorisation which an online content-sharing service provider must obtain under Article 17(1) of the DSM Directive for communication to the public or making available to the public necessarily extends to the technically required reproductions made on its servers in order to give the public access to that content. If the Court follows that approach, the practical result would be highly consequential: platform compliance, licensing negotiations with collective management organisations, and the allocation of responsibility between platforms and users would all move further toward a single integrated authorisation model rather than a stacked, double-licensing structure.
1. The Opinion does not deny reproduction; it reframes how reproduction is licensed
The core legal contribution of Emiliou’s Opinion lies in its refusal to solve the case through simplification. The upload of protected content to an online content-sharing platform is not treated as a purely communicative act, nor are the server-side copies dismissed as legally irrelevant technical residue. Instead, the Opinion accepts that digital copies made on platform servers, where technically required to provide public access, do fall within the scope of the reproduction right.
That matters because it preserves doctrinal coherence. EU copyright law cannot simply pretend that technically necessary digital copies do not exist when the platform stores, processes, converts and delivers protected content through its own infrastructure. Yet Emiliou’s next step is even more important. He argues that, in the specific architecture of Article 17 DSM, those reproductions and the act of making content available form part of a single operational process that begins with the upload and culminates in public accessibility. For that reason, the licence required under Article 17(1) must be understood as covering the technically necessary reproductions as well.
This is a subtle but significant distinction. It is one thing to say that reproduction occurs. It is another to say that each such reproduction opens an independent licensing layer. The Opinion rejects the second proposition without collapsing the first. If adopted by the Court, that approach would strengthen legal certainty by confirming the existence of the reproduction right while resisting the fragmentation of platform licences into multiple cumulative permissions.
2. Why the case matters for licensing markets and collective management
The practical stakes are especially high for licensing negotiations. If server-side copies in the upload process had to be licensed separately from the act of communication to the public, platforms could face not merely broader liability but a structurally more expensive and unpredictable licensing environment. Rights holders and collective management organisations would have stronger incentives to separate the economic value of platform exploitation into additional licensing layers, potentially multiplying transactional friction.
Emiliou’s approach points in the opposite direction. It aligns Article 17 with a market design logic in which platforms obtain a comprehensive authorisation for the economically meaningful use they organise: enabling user-uploaded protected content to be made available to the public through a profit-oriented, content-sharing service. The technically necessary reproductions remain legally relevant, but they are not converted into a second fee trigger.
That could reshape negotiations in a more disciplined way. The main bargaining variables would remain catalogue coverage, remuneration, territorial scope, usage reporting, auditability, and the relationship between platform functionality and licence terms. Collective management organisations would still retain an important role, but their competitive strength would increasingly depend on their ability to offer broad, transparent, low-friction blanket solutions rather than on splitting rights into additional transactional checkpoints. In that sense, the Opinion is not anti-rightholder; it is anti-duplication in the licensing chain.
3. The user side: a more workable vision of UGC authorisation
The Opinion also matters because it addresses a question that often remains under-analysed in platform copyright debates: if uploads generate reproductions on platform servers, must users themselves secure separate authorisation for those acts? Emiliou’s reasoning suggests a more realistic answer. Where users are not acting on a commercial basis or their activity does not generate significant revenues, the authorisation obtained by the platform under Article 17(1) should also cover the relevant acts carried out by those users that are technically required to give the public access to the works or other subject matter.
If the Court endorses this position, it would reduce one of the most serious sources of practical incoherence in Article 17 compliance. Most ordinary users are in no position to clear, on a granular basis, reproduction rights, communication rights, territory-by-territory coverage, and repertoire ownership before every upload. A legal model that required the platform to obtain one licence while forcing users to secure another licence for the same integrated upload chain would be theoretically neat but operationally unworkable.
That does not mean users become immune from copyright analysis. Commercial exploitation, monetised creator activity, uses outside the scope of the platform’s authorisation, and disputes involving exceptions and limitations will continue to generate difficult questions. But the Opinion clearly favours a system in which Article 17 remains administrable for ordinary platform participation rather than one that turns compliance into an impossible individual rights-clearance exercise.
4. What this could mean for platforms operating in Europe
For platforms, media groups, MCNs, music services, video-sharing businesses and other digital intermediaries active in Europe, the wider message is that Article 17 compliance is evolving away from a narrow debate about abstract liability and toward a more concrete expectation of integrated rights organisation. The issue is no longer only whether a platform bears responsibility for user uploads. It is increasingly how the platform structures licences so that they map onto the technical realities of hosting, storing, processing, distributing and making content accessible.
This has immediate operational implications. Contracts should be reviewed to confirm whether they clearly cover server storage, transcoding, caching, internal delivery and other technically necessary copies linked to public availability. Product teams should also verify that internal rights-management language is accurate: describing uploads as involving only communication to the public may now be too crude, but presenting every technical copy as requiring a separate licence would be equally misleading if the Court adopts Emiliou’s reasoning.
The case may also have a broader ripple effect. Once the Court clarifies how to distinguish between acknowledging the existence of reproduction and requiring a separate reproduction licence, the same analytical method may influence future disputes involving cloud functionalities, synchronisation across devices, temporary and persistent copies, and other digital uses where technical acts and economically relevant exploitation overlap. Even though the case is about OCSSPs, its reasoning could shape the next phase of EU copyright doctrine in digital environments more generally.
5. What to watch next
This remains an Advocate General’s Opinion, not the Court’s final judgment. The Court of Justice often follows an Advocate General’s framework, but it is not bound to do so. That said, the Opinion sharply defines the central question that now matters for the EU platform copyright economy: in a single upload-and-access chain, how far can copyright law split platform activity into separately licensable units without undermining legal certainty and commercial workability?
Pending judgment, businesses should prepare on two fronts. First, they should revisit licence language for European-facing services and confirm whether technically necessary reproductions are already captured expressly or by implication. Second, they should align legal, compliance and product messaging so that the platform’s technical workflow and its licensing logic do not contradict one another. The most resilient strategy is not to bet on an extreme interpretation, but to ensure that rights clearance, system design and platform monetisation are internally consistent.
If the Court ultimately endorses Emiliou’s reasoning, Article 17 will be read more firmly as a rule against technical double charging within an integrated platform use. That would not necessarily make platform obligations lighter. It would, however, make them clearer.
