Opinion of the Advocate General — ECLI:EU:C:2025:749
Date: 2025-10-02
Language of the case: Dutch

summary – ruled that an offline streaming copy is a 
copy made on instruction because it is the provider of the streaming service that, 
in response to a signal to that effect from the user (pressing the appropriate 
button), actually performs and completes the copying process, for commercial 
ends. In the view of the Gerechtshof, the provider of the streaming service is 
therefore the one who makes the copy (on the instruction of the user), and not the 
user (using the streaming service provider’s technical facility). For this reason, 
according to the Gerechtshof, an offline streaming copy is not a private copy as 
referred to in Article 16c Aw and no private copying compensation is due for it. 
According to the Gerechtshof, this outcome is also supported by the fact that the 
character of an offline streaming copy is different to that of a private copy because 
the rightholder retains control over the works. Not only does he himself determine 
which works are made available to subscribers, but he can also himself block 
access to the offline streaming copies (or cause it to be blocked) or remove an 
offline streaming copy (or cause it to be removed). 
3.3.2 The views of the Gerechtshof that the offline streaming copy is made by the 
streaming service and is therefore a copy made on instruction, and that copies 
made on instruction are not covered by the Dutch private copying regulation, are 
disputed in cassation by Stichting De Thuiskopie and SONT. However, these 
parties also argue that the Gerechtshof’s interpretation of the Dutch private 
copying regulation, to the effect that offline streaming copies are not covered by 
that regulation, is contrary to the Copyright Directive. Before the allegations in the 
pleas on the Gerechtshof’s interpretation of Article 16c(1) Aw and the way it 
applied that provision to the facts of this case can be considered, it should first be 
established what significance the Copyright Directive has in this regard. 
3.4.1 Article 5(2)(b) of the Directive permits the national legislator to provide for 
exceptions or limitations to the reproduction right of the rightholder ‘in respect of 
reproductions on any medium made by a natural person for private use and for 
ends that are neither directly nor indirectly commercial’. This wording seems to 
indicate that the requirement of non-commercial ends refers to the use of the copy 
by the natural person and not to the intervention by a third party in making the 
copy. 9 
3.4.2 It may be inferred from the case-law of the CJEU that the intervention of a 
third party acting commercially does not in itself preclude the presumption of 
private copying within the meaning of Article 5(2)(b) of the Copyright Directive. 
That case-law indicates that both the cases in which the intervention of a 
 
8 Kamerstukken II 2002/03, 28482, No. 8. p. 12. 
9 Cf. the Opinion of Advocate General Szpunar, CJEU, 29 November 2017, Case C-265/16, 
ECLI:EU:C:2017:913 (VCAST), paragraph 26. 
STICHTING DE THUISKOPIE 
 
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commercial third party consists only in the provision of equipment, and the cases 
in which there is a more far-reaching service provided by a commercial third party 
in the making of a private copy, are permissible exceptions for copies for private 
use. The CJEU ruled, for example, in VCAST 10 and Ocilion, 11 citing the 
Padawan, 12 case, that in order to rely on Article 5(2)(b) of the Copyright 
Directive, it is not necessary that the natural persons concerned possess 
reproduction equipment, devices or media by which the reproductions are made, 
but that they may also ‘have copying services provided by a third party, which is 
the factual precondition for those natural persons to obtain private copies’. 
Furthermore, in Austro-Mechana v Strato, 13 the CJEU ruled that the expression 
“reproductions on any medium”, referred to in Article 5(2)(b) of the Copyright 
Directive, covers the saving, for private purposes, of copies of works protected by 
copyright on a server on which storage space is made available to a user by the 
provider of a cloud computing service. This case-law raises the question of 
whether the making of offline streaming copies as described above in 
paragraph 2.3, (i)-(iii), can be seen as the making by a natural person of a 
reproduction for private purposes with the aid of technical or other means (such as 
an app on the natural person’s device) provided by a third party acting 
commercially, by means of which the reproduction can be made. 
3.4.3 Under Article 5(5) of the Copyright Directive, the exceptions and limitations 
permitted to the national legislator under paragraph 2 of that provision may only 
be applied in certain special cases, may not conflict with normal exploitation of 
the works or other subject matter and may not unreasonably prejudice the 
legitimate interests of the rightholder (‘the three-step test’). This raises the 
question of whether the three-step test precludes a national regulation under which 
an offline streaming copy is deemed to be a private copy, given the limitation on 
the copyright holder’s reproduction right inherent therein. In this regard, it could 
be relevant that the rightholder retains control over the works in the sense that he 
determines which works are made available to subscribers and that he can block 
access to the offline streaming copies (or cause it to be blocked) or remove an 
offline streaming copy (or cause it to be removed) (see paragraph 2.3 above, under 
[iii, (g)]. Possibly also relevant here is whether the rightholder receives 
compensation through the licence fee he negotiates with the provider of the 
streaming service, which is partly based on the number of times an offline 
streaming copy is played by the user of the streaming service. Based on these 
circumstances, it could be considered that the rightholder is able to supervise the 
use made of his protected works by persons who have lawful access to them, and 
that allowing offline streaming copies is part of the normal exploitation by the 
 
10 CJEU, 29 November 2017, Case C-265/16, ECLI:EU:C:2017:913 (VCAST), paragraph 35. 
11 CJEU, 13 July 2023, Case C-426/21, ECLI:EU:C:2023:564 (Ocilion), paragraph 30. 
12 CJEU, 21 October 2010, Case C-467/08, ECLI:EU:C:2010:620 (Padawan), paragraph 48. 
13 CJEU, 24 March 2022, Case C-433/20, ECLI:EU:C:2022:217 (Austro-Mechana v Strato), 
paragraph 33. 
REQUEST FOR A PRELIMINARY RULING OF 12. 7. 2024 – CASE C-496/24 
 
12  
rightholder, for which the rightholder can negotiate remuneration through the 
exercise of the reproduction right under Article 2 of the Copyright Directive. In 
this regard, offline streaming copies could differ in relevant ways from the cases 
that were at issue in the CJEU case-law set out above in paragraph 3.4.2. 
Designating an offline streaming copy as a reproduction for private use as referred 
to in Article 5(2)(b) of the Copyright Directive, or as a private copy under 
Article 16c(1) of the Copyright Act, would then possibly conflict with the normal 
exploitation of the work or unreasonably prejudice the interests of the 
rightholder. 14 
3.4.4 The CJEU has not yet decided whether the making of an offline streaming 
copy as described above in paragraph 2.3 under (i)-(iii) falls under the private 
copy exception in Article 5(2)(b) of the Copyright Directive. The answer to that 
question is, also in view of what has been considered above in paragraphs 3.4.2-
3.4.3, reasonably open to doubt. The Hoge Raad will refer that question to the 
CJEU. 
3.4.5 Stichting De Thuiskopie and SONT argue that a national private copying 
regulation according to which an offline streaming copy is not regarded as a 
private copy is precisely contrary to, and in conflict with, the objectives pursued 
by the Copyright Directive, including a high level of copyright protection, 15 a fair 
balance between the interests of the rightholder and the interests of the user 16 and 
a coherent and technologically neutral application by the Member States of the 
exceptions and limitations. 17 The Hoge Raad will also refer a question in this 
regard to the CJEU. 
3.5 Consideration of the remaining allegations contained in the pleas in both 
appeals in cassation will be stayed. 
4. Description of the starting points and facts to which the interpretation 
to be given by the CJEU should be applied 
The Hoge Raad refers to the starting points and facts set out in paragraph 2 above, 
which should be the point of departure in these proceedings. 
 
14 Cf. Opinion of Advocate General Szpunar, CJEU, 29 November 2017, Case C-265/16, 
ECLI:EU:C:2017:913 (VCAST), paragraphs 57-70. 
15 Copyright Directive, recitals 4 and 9. 
16 Copyright Directive, recital 31. 
17  Copyright Directive, recital 32.  
STICHTING DE THUISKOPIE 
 
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5. Questions of interpretation 
1. Can a reproduction with the characteristics described above in 
paragraph 2.3, (i)-(iii) (offline streaming copy), having regard also to 
the three-step test (Article 5(5) of the Copyright Directive), be 
regarded as a ‘reproduction … made by a natural person for private 
use, and for ends that are neither directly or indirectly commercial’ as 
referred to in Article 5(2)(b) of the Copyright 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 based on the 
number of times an offline streaming copy is played by the user of the 
streaming service? 
6. Decision 
The Hoge Raad: 
- requests the CJEU to give a ruling on the questions formulated in 
paragraph 5 above; 
- […] [staying of national proceedings] 
This judgment was […] delivered in open court […] on 12 July 2024. 
[…] 
ECLI:NL:HR:2024:1074 
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