Streaming Without Copying: The CJEU Redefines Private Use in Stichting de Thuiskopie (C-496/24)

Introduction

On 16 April 2026, the Second Chamber of the Court of Justice delivered its judgment in Case C-496/24, Stichting de Thuiskopie, concerning Article 5(2)(b) of Directive 2001/29 (InfoSoc Directive). This is the latest in a long line of CJEU judgments on the private copying exception (many of which discussed in this blog).

The case arises from disputes between Dutch collecting societies and hardware manufacturers concerning the applicability of private copying levies to “offline streaming copies” made within subscription-based streaming services.

This judgment continues the Court’s effort to recalibrate the private copying exception in light of digital uses, technological protection measures (TPMs), and platform-based distribution models.

This post proceeds in four steps. It first outlines the factual background and the questions referred. It then analyses the Court’s reasoning on the qualification of offline streaming copies and the role of technological control, before turning to the issue of licensing and compensation. It concludes with some broader reflections on the implications of the ruling.

Facts of the case and questions referred

The dispute arose in the Netherlands, where Stichting de Thuiskopie (SdT) and Stichting Onderhandelingen Thuiskopievergoeding (SONT) sought to impose a private copying levy on manufacturers of computer equipment, including HP and Dell, in respect of offline streaming copies made through subscription-based streaming services.

After the District Court of the Hague sided with the collecting societies, the Court of Appeal of The Hague held on appeal that offline streaming copies do not qualify as “private copying”, thereby excluding them from the levy system. The case ultimately reached the Supreme Court of the Netherlands, which referred several questions to the Court of Justice.

The referring court explained that offline streaming copies are downloads or copies made available to users of paid streaming services so that they can access music or films without an internet connection. The user selects content in the streaming app, but the provider places the copy in a designated part of the device, encrypts it, and keeps it accessible only within the app. The user cannot move the file, transfer it, or determine where it is stored. The copy may be automatically deleted when the subscription ends, when the terms of use so provide, or when the rightholder withdraws consent. The rightholder therefore retains control over the work and may block access to it.

In essence, the referring asked whether such copies fall within the scope of the private copying exception (Article 5(2)(b)) interpreted in light of the three-step test (Article 5(5)), whether the InfoSoc Directive’s objectives preclude their exclusion from the private copying exception, and whether licensing remuneration is relevant.

As a preliminary matter, the Court of Justice reformulated the first two questions as concerning only Article 5(2)(b), because Article 5(5) does not define the substantive content of the exception, but only governs its application.

Analysis

From “copy” to “access”: offline streaming as communication to the public

The Court first recalled that Article 5(2)(b) applies only to reproductions under Article 2 and not to acts of communication to the public under Article 3 InfoSoc Directive. It therefore asked whether offline streaming copies are reproductions or instead acts of making available to the public (paras 25-26).

In practical terms, the functionality resembles Spotify allowing a subscriber to save playlists for offline listening, Netflix allowing a user to download episodes inside the app, or Audible allowing audiobooks to be stored for app-based offline access. In each example, the file is accessible locally, but only within the service, subject to encryption, subscription status, and rights-holder control.

The Court relied on its settled case law that communication to the public requires both an act of communication and communication to a “public” (paras 28-35, relying on inter alia Tom Kabinet and VCAST as the anchor judgments to refer back to its vast case law on communication to the public).

The CJEU found that offline streaming functionality enables subscribers to access works (rather than the specific on-device copies) from a place and at a time individually chosen by them. It also noted that many subscribers may access the same work simultaneously or successively, satisfying the “public” requirement. (para 36) Subject to verification by the referring court, the CJEU therefore classified the making available of an offline streaming copy as making available to the public under Article 3(1) InfoSoc Directive. (para. 37) That classification was decisive. Since the act falls within Article 3 rather than Article 2, it cannot fall within the private copying exception in Article 5(2)(b) (para 38).            

The Court then reasoned in the alternative. Even if the act were treated as a reproduction by the referring court, private copying requires that the copy be made by or on the initiative of a natural person who has lawful access to the source and control over the copy (paras 39-42). That condition was not met. The provider holds the source of the copy, makes the copy, controls the technical environment, and merely gives the user app-based access to the resulting offline copy (paras 43-44).

Technological measures, including encryption and app-based restrictions, prevent transfer, movement, or reproduction of the copy and allow the rightholder to retain control. The Court linked this reasoning to Article 6 of the InfoSoc Directive and case law on TPMs, namely Nintendo. As a result, the Court concluded that such copies cannot, in principle, be classified as private copies (paras 45-47).

The implications of this logic might be broader than what the Court intended. If we follow this argument through its logical conclusion, then it is doubtful whether copies made on a set top box (STB) – typically encrypted and managed by the supplier of the STB and bundled with a TV-subscription with no possibility to export recording or to keep them after cancelling a subscription –  qualify as private copies. However, STB are targets of levies in at least some EU member states (see e.g. CISAC 2026). The legality of such levies might therefore be in question following this judgment.

Licensing, technological control, and remuneration

The third question concerned whether licence payments for offline streaming copies affect the application of the private copying exception (para 49).

The Court reiterated that fair compensation under Article 5(2)(b) of the InfoSoc Directive is intended to offset harm suffered by rightholders due to unauthorised private copying, as reflected in earlier case law such as Padawan and Copydan (paras 50-52).

However, that case law applies where natural persons have and control a copy of the work. It does not mean that private copying gives users a right to make copies where rightholders retain technological control. The purpose of fair compensation is to compensate harm caused by private copying, especially where the rightholder loses the opportunity to exercise the exclusive right. Where the rightholder retains control through TPMs and authorises the copy through a licence, no such compensable harm arises (paras 53-55).

On the facts described by the referring court, licence remuneration may be calculated by reference to uses of offline streaming copies, such as the number of plays. That type of negotiated remuneration through licensing is thus part of the rightholder’s normal exploitation of the work (para 56).

For the purposes of determining the scope of the private copying exception, the remuneration model determined by licensing agreements is not decisive. What matters is whether the rightholder retained control through TPMs and was able to authorise the copy in question. By contrast, where users independently have and control copies, authorisation by the rightholder has no legal effect within the private copying exception, and only fair compensation is relevant (paras 57-58).

Conclusions

The Court’s judgment firmly excludes offline streaming copies from the scope of the private copying exception, primarily because such acts are characterised as communications to the public rather than reproductions. It also emphasises the decisive role of technological control and user autonomy in determining the applicability of Article 5(2)(b) InfoSoc Directive.

In essence, the Court holds that where providers create and control offline copies within a closed technical environment, through encryption, app-based restrictions, and subscription-based access, users merely access works rather than possess or control copies in the sense required for private copying. The existence of licence-based remuneration does not alter that conclusion. What matters is that rightholders retain technological and legal control over the use of the work.

More broadly, the judgment reflects the Court’s continued shift from a copy-based understanding of private use towards an access-based model of digital consumption. Copyright exploitation is increasingly structured through licensing, TPMs, and platform control rather than through statutory user exceptions.

The implications may extend beyond streaming services themselves. The Court’s reasoning also raises questions about recordings made through set-top boxes (STBs), which in many Member States remain subject to private copying levies despite being encrypted, subscription-dependent, and technically controlled by providers. If such recordings no longer qualify as “private copies” under Article 5(2)(b), aspects of existing levy systems may come under renewed scrutiny.

Whether this judgment ultimately signals a broader contraction of private copying levies in the digital environment remains uncertain. One might be tempted to read the ruling as pointing toward the gradual “phasing out” of levies in the digital environment. Yet, predictions of the demise of copyright levies are hardly new. Similar arguments were already advanced more than two decades ago in the well-known (checks notes) 2003 (!) study by Hugenholtz, Guibault and Van Geffen. And yet, in 2026, private copying and reprography levies remain firmly embedded in the legal and economic architecture of copyright systems across much of the world (CISAC 2026).

If anything is certain in this area, it is that the CJEU will be asked to revisit the private copying exception again... and that we will be here to blog about it.

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