CJEU, 16/04/ 2026, Stichting de Thuiskopie, C-496/24
On April 16, the CJEU issued a highly anticipated ruling concerning the articulation between the private copying exception and digital uses related to streaming. The request for a preliminary ruling arose in connection with two disputes between the Dutch organizations responsible for administering the private copying levy and HP Nederland BV (HP), Dell BV, and a Dutch professional association representing entities that pay the private copying levy.
The core of the debate concerned the application of the private copying levy to offline copies of content from streaming platforms. In particular, the Court was asked to clarify the interpretation of Article 5(2)(b) of Directive 2001/29/EC (the “Directive”), concerning this exception, in conjunction with the requirements set forth in Article 5(5).
The main issue was to determine whether copies made by consumers as part of “offline streaming” for offline viewing —i.e., downloads included in the subscription package, allowing access to content without an Internet connection—could be classified as private reproductions within the meaning of the Directive (“private copying” in France) and justify fair compensation for rights holders.
The Court bases its analysis on EU law, in particular Articles 2, 3, 5, and 6 of the Directive. It recalls, in particular, that Article 2 establishes an exclusive right of reproduction, while Article 5(5) strictly limits exceptions, which are limited to specific cases that do not conflict with the normal exploitation of the work or other protected subject matter nor cause unjustified prejudice to the legitimate interests of the right holder. It is also based on Dutch law, which recognizes the author’s exclusive right to control the disclosure and reproduction of their work, subject to legal exceptions. In this regard, the private copying exception is only permitted for strict personal use, without commercial purpose, and subject to the payment of fair compensation.
The CJEU clarifies that the private copying exception applies only to acts of reproduction (Article 2), not to acts of communication to the public (Article 3). Therefore, it must be determined whether the provision of a copy of a protected work for offline viewing by a streaming service constitutes reproduction within the meaning of Article 2 or whether, on the contrary, it falls under the right of communication of works to the public within the meaning of Article 3.
First, the Court recalls that communication to the public within the meaning of Article 3 requires the fulfilment of two cumulative elements: an act of communication and a public. Regarding the act of communication, the Court observes that this element is materialized in this case by the act of offering the work on an accessible platform, regardless of whether the user requests a copy. With regard to the public, it notes that the functionality is open to an indeterminate number of subscribers, who may access the same work simultaneously or successively, so that the de minimis threshold is exceeded. By meeting these two conditions, the Court classifies this practice as making available to the public: “making a protected work available by means of an offline streaming copy made by the provider of a streaming service on the end-user’s device at the request of that user must be regarded as making a work available to the public (…) in accordance with Article 3(1) of Directive 2001/29.” This making available therefore falls outside the classification of reproduction and, consequently, the private copying exception.
The Court nevertheless specifies that, should the referring court classify the acts in question as acts of reproduction, it would be for that court to verify whether the conditions of Article 5(2)(b) are met to determine whether fair compensation can be charged to the defendants. Under that article, read in conjunction with Article 6 of the Directive, the creation of a private copy requires that the user has the copy of the work and has control over it, a necessary condition for granting fair compensation.
The Court thus examines the conditions for the private copying exception and concludes that they are not met when the copyright holder retains control over the work through technical measures (encryption and access restrictions), thereby preventing any free use. In this case, this is true since the user can neither move, nor transfer, nor reproduce the copy outside the service. Here, the conditions are not met, as the copy is made not by the user, but by the provider, who retains technical control. Thus, “this copy cannot be considered to have been made by that person within the meaning of Article 5(2)(b) of Directive 2001/29”: the CJEU therefore excludes the classification as “private copying.”
Finally, the CJEU rules on the third preliminary question by examining whether the payment of remuneration to the rights holder, under a license governing the creation or use of an offline copy, is likely to affect the application of the private copying exception. The Court here draws a fundamental distinction between, on the one hand, situations in which the private copying exception applies due to a loss of control by the rights holder over the act of reproduction, and, on the other hand, those falling within the scope of the normal exploitation of the work. It recalls that fair compensation is intended to compensate for the prejudice resulting from the deprivation of the right holder’s exclusive right to authorize or prohibit the reproduction of their work. However, such prejudice does not exist when the copyright holder retains control over the work through technical protection measures. Since this is the case and they authorize the use in question, the copies made cannot be considered to generate prejudice giving rise to fair compensation under private copying.
In this ruling, the CJEU therefore dismisses fair compensation for offline viewing permitted by streaming services and, in light of digital uses, clarifies the scope and limits of the private copying exception.
Marine BENTOUMI,
trainee lawyer in the PLA department
