The private copying exception under scrutiny – the copyright treatment of offline streaming downloads

Offline streaming copies do not fall within the scope of the private copying exception under the InfoSoc Directive, the Court of Justice of the European Union (CJEU) has ruled.

The CJEU’s decision in the “Stichting de Thuiskopie” (C-496/24, judgment of 16 April 2026) (the “SdT case”) confirms that downloads made by users within a streaming platform do not constitute private copies. As a result, they do not fall within the scope of the private copy exception under the InfoSoc Directive. The judgment may strengthen rightsholders’ bargaining position and could affect licensing negotiations and pricing structures.

The technical characteristics of offline streaming downloads, together with the contractual arrangements between streaming platforms and their users, played a critical role in the CJEU’s judgment.

1. A fair compensation claim against computer equipment manufacturers

Under the Dutch transposition of Article 5(2)(b) of the InfoSoc Directive, two collective management organisations responsible for collecting private copying levies argued that HP and Dell should pay the applicable levy in respect of offline streaming copies. These copies were created through on-demand streaming services when users downloaded musical and audiovisual works to their devices. The Dutch courts initially held that such downloads could not be regarded as private copies under either Article 5(2)(b) of the InfoSoc Directive or its national equivalent.

The collective management organisations appealed and the case ultimately reached the Supreme Court of the Netherlands.

The main question before the national court was the extent to which an offline streaming copy could be regarded as a reproduction for private use.

The national court noted that the streaming provider pursues a commercial purpose even when making offline copies available to paying subscribers. Although the copy is stored on the user’s device, the user has no control over the file beyond playing or deleting it through the streaming application. Under the provider’s terms and conditions, the content is encrypted, may be deleted at specified times or may be blocked by the platform.

2. A preliminary ruling arising from enforcement of the private copying levy

In light of these circumstances, the Supreme Court referred the matter to the CJEU for clarification. The national court raised two principal questions: first, whether an offline download qualifies as a private copy and secondly, whether the private copying exception is affected by the licence fee paid by the streaming platform to the rightsholder.

2.1 The offline streaming copy as a private copy

The CJEU was first asked whether a work made available through an offline streaming copy, taking into account the technical limitations described above, falls within the scope of the private copying exception under Article 5(2)(b) of the InfoSoc Directive. As a starting point, the Court relied on its previous case law to conclude that users are, in principle, able to access the work at a time and place of their choosing. In addition, access to the streaming service is available to any subscriber and any subscriber may request access to offline copies.

For these reasons, the service constitutes a “communication to the public” rather than an act of reproduction. Consequently, the private copying exception does not apply to offline streaming copies, as it only covers acts of reproduction. Nevertheless, the Court provided further guidance in the event that the national court were to determine that the act constituted reproduction.

Even in that scenario, the exception under Article 5(2)(b) would not apply. For a copy to qualify as “private”, the user must exercise full control over the local copy. Here, technical safeguards prevent users from freely using the copy and access to the work is not granted for the purpose of creating such copies. The streaming service retains control over the source of the copy throughout. Most importantly, the offline copy could not have been made without the rightsholder’s consent, which was granted to the streaming provider.

2.2 The influence of the license fee

In its final question, the national court asked whether the private copying exception could be affected by the fact that the platform pays a licence fee for the work. The CJEU explained that no fair compensation is owed where the rightsholder maintains continuous control over its work through technological measures and has granted a licence. This is because the private copying levy is generally payable only where harm is caused to the rightsholder.

In the context of offline streaming, rightsholders can negotiate a licence fee that may include remuneration for copies made available for later offline access. The key consideration is that the rightsholder remains able to supervise the use of their work. As a result, licence fees do not affect whether offline downloads qualify as private copies, nor can such fees be regarded as the “fair compensation” referred to in Article 5(2)(b) of the InfoSoc Directive.

The rationale behind the private copying exception, as with other copyright exceptions, is to permit access to protected works under specific conditions, irrespective of whether the rightsholder has granted authorisation. The Court’s response to this final question therefore completes the picture of why the circumstances of this case fall outside the scope of the private copying exception.

3. Practical implications for licensing mechanisms

The CJEU’s ruling has practical implications for copyright holders of musical and audiovisual works distributed through streaming services. The SdT case confirms that offline streaming downloads remain a licensed, platform-controlled feature rather than a private copying act under Article 5(2)(b) of the InfoSoc Directive. This provides greater legal certainty for rightsholders and streaming services when structuring licence agreements, while leaving users’ access to offline content dependent on contractual terms and technological controls.

For rightsholders, the SdT case may strengthen their bargaining position. It may also encourage more differentiated licensing models, with offline copies treated as a separately licensed feature. In addition, rightsholders may seek more detailed reporting on how their works are used, including metrics relating to offline streaming activity. Such data may be used in future negotiations with streaming providers. These discussions are likely to be more common in the music sector, where offline use is widespread, than in the audiovisual sector, where offline streaming is less prevalent.

The judgment also reinforces legal certainty for streaming platforms by emphasising the significance of technological protection measures. As the treatment of downloads will depend heavily on licensing terms, clearer contractual provisions may help minimise the risk of users seeking to rely on private copying exceptions. Given the Court’s emphasis on technological safeguards and their implementation, streaming services may be encouraged to invest further in digital rights management (DRM) systems, including enhanced encryption, access controls and revocable download functionality. For smaller market participants, however, the judgment may increase compliance costs associated with sophisticated technological measures and potentially higher licensing fees.

Streaming service providers may also need to review their pricing structures to determine whether offline streaming or download functionality should be priced separately. More broadly, the decision could influence the structure of subscription bundles offered by telecommunications providers, where access to streaming services is frequently included within mobile or broadband packages.