A landmark ruling from the Court of Justice of the European Union has determined that downloads made within subscription streaming services - the kind that allow users to watch films or listen to music without an internet connection - do not qualify as private copies under EU copyright law. The judgment, delivered on 16 April 2026 in Case C-496/24 involving Dutch collecting societies and hardware manufacturers including HP and Dell, closes a significant debate about whether levies designed to compensate rights holders for private copying can be applied to devices used to access platform-controlled offline content.
What the Private Copying Exception Actually Covers
The private copying exception, established in Article 5(2)(b) of the 2001 InfoSoc Directive, allows EU member states to permit individuals to reproduce copyrighted works for personal use, provided rights holders receive fair compensation - typically collected through levies on devices such as hard drives, phones, and computers. The underlying logic is that when a person freely copies a work onto their own device and retains control over that copy, the rights holder loses an opportunity to exercise their exclusive rights and deserves offsetting remuneration.
This system has functioned reasonably well for physical media and early digital formats. Blank CDs, memory cards, and personal computers were natural targets for such levies. But streaming has fundamentally disrupted the copy-based model that underpins the exception. When a user "downloads" content within a streaming app, they are not creating a file they own, can move, or can keep. The file is encrypted, stored in a location determined by the provider, accessible only within the app, and subject to deletion when the subscription lapses or the rights holder withdraws consent.
The Court's Core Legal Reasoning
The CJEU reached its conclusion through two distinct but reinforcing lines of reasoning. First, it found that offline streaming functionality is better characterised as an act of making available to the public under Article 3 of the InfoSoc Directive, rather than a reproduction under Article 2. The distinction is consequential: the private copying exception in Article 5(2)(b) applies only to reproductions. Because many subscribers can access the same work simultaneously or successively, and because the service enables access from a place and time individually chosen by the user, the Court determined that the relevant act is communication to the public - a category entirely excluded from the private copying framework.
Second, reasoning in the alternative, the Court held that even if the act were treated as a reproduction, it would still not qualify as private copying. The exception requires that the copy be made by or on the initiative of a natural person who has both lawful access to the source and genuine control over the resulting copy. In the offline streaming model, neither condition is met in the way the law envisages. The provider controls the source, executes the copy, encrypts it, and determines the conditions under which it can be accessed. The user receives access to a work, not possession of a copy. Technological protection measures - encryption and app-based restrictions - reinforce this structural reality, and the Court linked this reasoning to its earlier case law on TPMs, including the Nintendo judgment.
Licensing Agreements Do Not Change the Outcome
The third question referred by the Dutch Supreme Court asked whether the existence of licensing remuneration - streaming platforms already pay rights holders for offline access functionality - affects the analysis. The Court's answer was clear: it does not determine the scope of the private copying exception, but it does confirm that no additional compensable harm exists. Where a rights holder retains technological control through encryption and authorises the copy through a licensing agreement, the harm that fair compensation is designed to offset - namely, the involuntary loss of the ability to exploit the work - simply does not arise. The rights holder continues to exercise that exploitation through the licensing structure itself.
This reasoning draws a sharp conceptual line. Fair compensation under the private copying exception is a remedy for a specific kind of loss: the uncontrolled reproduction of a work by individuals who possess and manage copies independently of the rights holder. Where the rights holder remains in control, there is no such loss, and no levy is justified on that basis.
Broader Implications for the Levy System
The judgment carries implications that extend well beyond streaming platforms. The Court's emphasis on technological control and user autonomy as the decisive criteria for qualifying as a private copy raises questions about other content delivery mechanisms currently subject to levies in some EU member states. Set-top boxes used in cable and satellite television subscriptions, for instance, typically encrypt recordings, prevent export of files, and delete content when a subscription ends - conditions closely analogous to those at issue in this case. Whether levies applied to such devices remain defensible under this framework is a question that collecting societies and national courts will need to confront.
More broadly, the ruling reflects a sustained shift in how the CJEU understands copyright in digital environments. Rather than asking whether a copy was made, the Court increasingly asks who controls the copy and on what terms. Copyright exploitation in platform economies is structured through licensing, access controls, and technical restrictions - not through the transfer of physical or freely-held digital objects. The private copying exception was conceived for a world in which users created and held independent copies; the Court is now making explicit that it does not readily translate to a world in which access, not possession, defines the user's relationship to content.
