Referral C-534/25 (Cloudflare, 6 Aug 2025)

Can an act of making a phonogram available to the public within the meaning of Article 3(2)(b) of Directive 2001/29/EC be carried out only by persons in whose own access sphere the protected recording is located? Or can such an act of making a phonogram available to the public be carried out by posting a hyperlink – and, if so, under what conditions?

Are the criteria developed by the Court of Justice of the European Union as regards an act of communication to the public, pursuant to Article 3(1) of Directive 2001/29/EC, by the operator of a video-sharing platform or share-hosting platform to be applied also when assessing the question of whether the operator of a content delivery network, who may be exempted from liability pursuant to Article 13(1) of Directive 2000/31/EC 1 or Article 5(1) of Regulation (EU) 2022/2065, 2 has carried out its own separate act of making available to the public pursuant to Article 3(2) of Directive 2001/29/EC? If the foregoing question is answered in the negative: What criteria are to be applied for the purposes of determining whether the operator of a content delivery network carries out its own separate act of making available to the public?