Offline streaming copy does not fall under private copying exception of Article 5(2)(b) InfoSoc Directive
26-05-2026 Print this page
Offline streaming copy does not fall under private copying exception of article 5(2)(b) Directive 2001/29/EC (‘InfoSoc Directive’): Offline streaming functionality must be regarded as communication of a work to the public within the meaning of article 3(1) InfoSoc Directive. Offline streaming copy cannot be classified as a reproduction within the meaning of Article 2 InfoSoc Directive and thus cannot fall within the scope of the private copying exception of Article 5(2)(b) InfoSoc Directive. The offline streaming copy is not made by a natural person since they only have access to the work concerned once the copy thereof has been made by the provider of the streaming service and the source of the copy is held by the provider of the streaming service, not by the natural person concerned. The copyright holder retains control through an encryption method, such that that copy may not be moved, transferred or reproduced by the user, and thus holds the control to block access to that copy. Offline streaming copy does not give right to fair compensation because of normal exploitation: The remuneration arrangements provided for in a licence agreement which authorises the provider of a streaming service to make offline streaming copies on end users’ devices have no bearing on whether those copies are capable of falling within the private copying exception of Article 5(2)(b) InfoSoc Directive. It is only relevant if the copyright holder has retained control over that work by means of technological measures and has given its authorisation for that copy through for example a license, as it is not possible to obtain fair compensation in such a case.
Case C-496/24 / ECLI:EU:C:2025:551
Pursuant to Article 16c(2) of the Dutch Law on copyright, SdT and SONT claimed from HP and Dell, on account of their being producers of computer equipment, payment of a private copying fee in respect of offline streaming copies provided in connection with an on demand internet streaming service for musical or audiovisual works. An offline streaming copy entails downloaded content from a streaming service made available to a user of that paid service. The streaming service places the selected content on a part of the user's device using encryption methods and other technological protection measures, ensuring that only the rightholder retains control over the works concerned.
Taking the view that that fee was not due in respect of offline streaming copies, the Stichting Overlegorgaan Blanco Informatiedragers, HP and Dell brought an action against SdT and SONT. After the District Court The Hague and the Court of Appeal held that no fair compensation was payable, as offline streaming copies could not be regarded as 'private copying', SdT and SONT appealed to The Hoge Raad der Nederlanden (Supreme Court of the Netherlands), the referring court. This referring court questioned if an offline streaming copy could constitute a reproduction for private use in the sense of article 5(2)(b) Directive 2001/29 ('InfoSoc Directive').
Preliminary questions:
‘(1) [Having regard in particular to the three-step test laid down in] Article 5(5) of [Directive 2001/29, can an offline streaming copy] be regarded as a “reproduction … made by a natural person for private use, and for ends that are neither directly nor indirectly commercial” as referred to in Article 5(2)(b) of [that directive]?
(2) Do the objectives of the Copyright Directive, including a high level of copyright protection, a fair balance between the interests of the rightholder and the interests of the user, and a coherent and technologically neutral application by the Member States of the exceptions and limitations, preclude a national regulation under which the private copying exception does not also include offline streaming copies?
(3) Is it relevant to the answer to one or more of the preceding questions whether the rightholders receive compensation per offline streaming copy made, or whether they receive compensation [calculated according to] the number of times an offline streaming copy is played by the user of the streaming service?’
Opinion Advocate General Szpunar:
(1) Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that a subscriber to an on-demand internet streaming service whereby protected works are communicated is not reproducing those works for his or her own use within the meaning of that provision in a situation where he or she utilises the additional service whereby the works are communicated for offline use, which involves those works being saved in the memory of the subscriber’s device, whereby the service provider, using technological measures within the meaning of Article 6 of the aforementioned directive, retains full control over the location of those works, as well as whether they are copied or removed, and the subscriber can only use them (listen to them or watch them) on the relevant device during the period for which they are communicated.
Answer CJEU:
1. Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that making a protected work available by means of an offline streaming copy, which is made by the provider of a streaming service on the end-user’s device at the request of that user, that user not being able technically to have it available to himself or herself outside that service and it being ensured that the holder of the copyright in that work retains such control over that work as allows him or her the possibility to block access to that copy, does not fall within the scope of the private copying exception laid down in that provision.
2. Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that the application of the exception laid down in that provision is not affected by the fact that the act of copying the work concerned for offline streaming or the use of that copy was the subject of a payment to the holder of the copyright in that work under a licence authorising such copy, provided that (i) no technological measures have been implemented by the holder of the copyright in the work concerned and (ii) consequently, that copyright holder has been unable to provide authorisation for such an act.
