Do offline streaming copies fall under the private copy fee?

Millions of consumers download music and movies daily through streaming services to listen or watch them without an Internet connection. This raised the important legal question of whether manufacturers of smartphones and computers owe an additional private copying fee to copyright holders for doing so. The Court of Justice of the European Union (CJEU), in a ruling of April 16, 2026 ruled that these so-called ‘offline streaming copies’ do not fall under the private copy exception. Because the file remains firmly locked in the streaming service's app and the copyright holder retains complete control, the legal basis for levying a private copy fee is lacking.

The facts and legal context

At its core, the discussion revolves around the interpretation of the European Information Society Directive 2001/29/EC, and more specifically the copyright exception for the private copy (Article 5(2)b).

• The European lawmaker allows member states to make an exception to the reproduction right for copies made by a natural person for strictly private use (done in Belgium through Articles XI.190, 9° and 17° and XI.217, 7° and 16° Code of Economic Law (CEL)).
• As compensation for the authors“ lost earnings, the rights holders must receive ”fair compensation" (Article XI.229 CEL).
• In practice, this compensation is often financed through a levy (the private copy fee) on the sale of blank data carriers and equipment such as laptops, smartphones and tablets (collected in Belgium by CMO Auvibel).

In this particular lawsuit, the Dutch organizations charged with collecting these fees (Stichting de Thuiskopie and SONT) claimed payment from hardware manufacturers HP and Dell. They argued that the feature that allows users of a paid streaming service (such as Spotify or Netflix) to store files ‘offline’ on their device qualifies as a private copy. HP and Dell disputed this and refused to pay the multi-million dollar claims, arguing that an offline streaming copy is not a classic private copy.

The decision of the Court of Justice

The Court of Justice ruled in favor of hardware manufacturers and sharply defined the limits of the private copy exception in the digital age. The Court reached the following conclusions:

• When a streaming service provider makes a protected work available on the end user's device via an ‘offline streaming copy,’ it is not covered by the private copy exception.
• This is the case when the user is technically unable to access the copy outside the relevant streaming service.
• Moreover, it must be guaranteed that the copyright holder retains control of the work and can block access to the copy if necessary.
• The court added that it does not matter whether or not a fee was paid for the copy through a license, as long as the rights holder retains control through technical provisions.

Legal analysis and interpretation

From a copyright perspective, the Court makes a clean separation between the right of reproduction (Article 2 Information Society Directive - Article XI.165 §1, first paragraph CEL) and the right of communication to the public (Article 3 Information Society Directive - Article XI.165 §1, fourth paragraph CEL).

Because the offline streaming functionality allows the user to access a work at an individually chosen place and time, the Court classifies the service primarily as a ‘making available to the public’ within the meaning of Article 3. And there's the rub: the private copy exception (Article 5.2(b) Directive - Article XI.190, 9° CEL) applies only to the reproduction right, and not to communication to the public.

The Court stretches this reasoning far and conspicuously states that the act in such a case does not qualify as an act of reproduction. This can be debated since an encrypted digital file is actually stored on the user's device. However, the Court immediately overcomes this criticism with a legal safety net: even if the national court rules that it does constitute a reproduction, this copy cannot be deemed to have been made by the natural person himself.

Indeed, in order to constitute a valid reproduction for private use, the natural person must be able to freely dispose of the copy and control the source. As the Advocate General in his conclusion emphasized, the private copy exception assumes that the rights holder loses control over the use. However, this is not the case with offline streaming services; after all, the source of the copy is owned by the provider, not the user. The streaming service places the content in a protected part of the device's memory via a specific encryption method. The user cannot move, transfer or freely reproduce the file. Once the subscription ends, or the permission of the rights holder is revoked, the file is automatically deleted or rendered unusable via Digital Rights Management (DRM).

Since the streaming service provider, acting with a license from the copyright holder, retains full control by means of these technical provisions (as referred to in Article 6 of the Directive - Article XI.291 CEL), no unauthorized “harm” arises to the author. The act belongs to the normal exploitation of the work and therefore clashes with the so-called three-step test from Article 5(5) of the Directive (Article XI.192/3 CEL). Thus, the outcome remains unchanged: the offline copy is a strictly controlled service from the platform, and by no means an autonomous private copy by the end user.

What this specifically means

The ruling has implications for the digital and legal markets:

• For streaming services and hardware manufacturers: This is a victory. Manufacturers of IT devices such as smartphones, tablets and laptops will not have to pay additional or increased private copy fees based on the offline functionality of apps. This removes a financial pressure.
• For CMO's: A bummer. The Court makes it clear that the collection of millions of dollars in fees based on ‘offline streaming copies’ lacks any legal basis. Existing fee structures will have to be revised.
• For copyright holders: They should get their revenue for offline streaming exclusively from the licensing agreements they make directly with the streaming platforms (such as Spotify, Apple Music, Netflix), and not through the indirect route of device fees.
• For consumers: Consumer electronics prices are saved from further, unjustified price increases due to excessive copyright levies. The user experience within streaming apps remains unchanged.

Frequently asked questions (FAQ)

What is an offline streaming copy?
An offline streaming copy is a temporary download of a music track, podcast or movie within the application of a paid streaming service. The user can then play these files without requiring access to the Internet.

Why is a download via Spotify or Netflix not a ‘private copy’?
Because the file remains locked inside the app via technical safeguards (encryption). You cannot freely share the file, copy it to a USB stick or play it in another program. Because the copyright holder retains absolute control over the file, this does not legally fall under the private copying exception.

Does this ruling affect my subscription?
No, for the ordinary user, there is no change in functionality. You can continue to store your favorite media offline. The ruling does prevent device manufacturers (and indirectly consumers) from paying twice for this particular functionality.

Conclusion

The ECJ clarifies with this ruling: the classic private copy remuneration is not intended as a safety net for monopolized, DRM-protected streaming services. As long as the copyright holder holds the reins tightly via technical means, there is no compensatory private copying, but simply controlled making available.