Provisional text
JUDGMENT OF THE COURT (Second Chamber)
16 April 2026 (*)
( Reference for a preliminary ruling – Approximation of laws – Intellectual property – Copyright and related rights – Directive 2001/29/EC – Article 2 – Reproduction right – Article 3(1) – Right of communication to the public of works – Art. 5(2)(b) – ‘Private copying’ exception – Fair compensation – Paid streaming service – Offline streaming copy – Article 5(5) )
In Case C‑496/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), made by decision of 12 July 2024, received at the Court on 17 July 2024, in the proceedings
Stichting Onderhandelingen Thuiskopievergoeding,
Stichting de Thuiskopie
v
HP Nederland BV,
Dell BV,
Stichting Overlegorgaan Blanco Informatiedragers
THE COURT (Second Chamber),
composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Second Chamber, F. Schalin (Rapporteur), M. Gavalec and Z. Csehi, Judges,
Advocate General: M. Szpunar,
Registrar: A. Lamote, Administrator,
having regard to the written procedure and further to the hearing on 19 June 2025,
after considering the observations submitted on behalf of:
–        the Stichting Onderhandelingen Thuiskopievergoeding, by S.M. Kingma and E.A. Möhring, advocaten,
–        the Stichting de Thuiskopie, by T. Cohen Jehoram and J.J. Valk, advocaten,
–        HP Nederland BV, Dell BV and the Stichting Overlegorgaan Blanco Informatiedragers, by A.P. Groen, A.M. van Aerde and J.A. Visser, advocaten,
–        the French Government, by B. Dourthe and B. Herbaut, acting as Agents,
–        the European Commission, by P.-J. Loewenthal, J. Samnadda and P. Vanden Heede, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 2 October 2025,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of 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 (OJ 2001 L 167, p. 10), read in conjunction with Article 5(5) of that directive.
2        The request has been made in the context of two disputes between (i) the Stichting Onderhandelingen Thuiskopievergoeding (‘SONT’) and (ii) the Stichting de Thuiskopie (‘SdT’) and HP Nederland BV (‘HP’), Dell BV and the Stichting Overlegorgaan Blanco Informatiedragers. Those disputes concerned a fee claimed from HP and Dell, intended to finance the fair compensation paid to copyright holders under the private copying exception in the context of a service providing offline streaming copies, which service is provided in connection with an on-demand internet streaming service for musical or audiovisual works.
Legal context
European Union law
3        Recitals 5, 10, 23 to 25, 31, 32, 35, 38 and 39 of Directive 2001/29 are worded as follows:
‘(5)      Technological development has multiplied and diversified the vectors for creation, production and exploitation. While no new concepts for the protection of intellectual property are needed, the current law on copyright and related rights should be adapted and supplemented to respond adequately to economic realities such as new forms of exploitation.
…
(10)      If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia products, and services such as “on-demand” services, is considerable. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment.
…
(23)      This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.
(24)      The right to make available to the public subject matter referred to in Article 3(2) should be understood as covering all acts of making available such subject matter to members of the public not present at the place where the act of making available originates, and as not covering any other acts.
(25)      The legal uncertainty regarding the nature and the level of protection of acts of on-demand transmission of copyright works and subject matter protected by related rights over networks should be overcome by providing for harmonised protection at Community level. It should be made clear that all rightholders recognised by this Directive should have an exclusive right to make available to the public copyright works or any other subject matter by way of interactive on-demand transmissions. Such interactive on-demand transmissions are characterised by the fact that members of the public may access them from a place and at a time individually chosen by them.
…
(31)      A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. Existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the internal market of copyright and related rights. Such differences could well become more pronounced in view of the further development of transborder exploitation of works and cross-border activities. In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.’
(32)      This Directive provides for an exhaustive enumeration of exceptions and limitations to the reproduction right and the right of communication to the public. Some exceptions or limitations only apply to the reproduction right, where appropriate. This list takes due account of the different legal traditions in Member States, while, at the same time, aiming to ensure a functioning internal market. Member States should arrive at a coherent application of these exceptions and limitations, which will be assessed when reviewing implementing legislation in the future.
…
(35)      In certain cases of exceptions or limitations, rightholders should receive fair compensation to compensate them adequately for the use made of their protected works or other subject matter. When determining the form, detailed arrangements and possible level of such fair compensation, account should be taken of the particular circumstances of each case. When evaluating these circumstances, a valuable criterion would be the possible harm to the rightholders resulting from the act in question. In cases where rightholders have already received payment in some other form, for instance as part of a licence fee, no specific or separate payment may be due. The level of fair compensation should take full account of the degree of use of technological protection measures referred to in this Directive. In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment may arise.
…
(38)      Member States should be allowed to provide for an exception or limitation to the reproduction right for certain types of reproduction of audio, visual and audio-visual material for private use, accompanied by fair compensation. This may include the introduction or continuation of remuneration schemes to compensate for the prejudice to rightholders. Although differences between those remuneration schemes affect the functioning of the internal market, those differences, with respect to analogue private reproduction, should not have a significant impact on the development of the information society. Digital private copying is likely to be more widespread and have a greater economic impact. Due account should therefore be taken of the differences between digital and analogue private copying and a distinction should be made in certain respects between them.
(39)      When applying the exception or limitation on private copying, Member States should take due account of technological and economic developments, in particular with respect to digital private copying and remuneration schemes, when effective technological protection measures are available. Such exceptions or limitations should not inhibit the use of technological measures or their enforcement against circumvention.’
4        Article 2 of that directive, headed ‘Reproduction right’, provides:
‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a)      for authors, of their works;
(b)      for performers, of fixations of their performances;
(c)      for phonogram producers, of their phonograms;
(d)      for the producers of the first fixations of films, in respect of the original and copies of their films;
(e)      for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.’
5        Article 3 of the same directive, entitled ‘Right of communication to the public of works and right of making available to the public other subject matter’, provides in paragraph 1 thereof:
‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’
6        Article 4 of that directive, which is entitled ‘Distribution right’ provides as follows:
‘1.      Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.
2.      The distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent.’
7        Article 5 of Directive 2001/29, which is entitled ‘Exceptions and limitations’, provides, in paragraph 2(b) and in paragraph 5 thereof, as follows:
‘2.      Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:
…
(b)      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, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject matter concerned.
…
5.      The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.’
8        Article 6 of that directive, entitled ‘Obligations as to technological measures’, provides, in paragraphs 1 and 3 thereof:
‘1. Member States shall provide adequate legal protection against the circumvention of any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
…
3. For the purposes of this Directive, the expression “technological measures” means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law …. Technological measures shall be deemed “effective” where the use of a protected work or other subject matter is controlled by the rightholders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject matter or a copy control mechanism, which achieves the protection objective.’
Netherlands law
9        Article 1 of the Auteurswet (Law on copyright) of 23 September 1912 (stb. 1912, No 308), in the version applicable to the dispute in the main proceedings (‘the Law on copyright’) provides as follows:
‘Copyright is the exclusive right of the author of a literary, scientific or artistic work or his successors in title, to communicate that work to the public and to reproduce it, subject to the limitations laid down by law.’
10      Article 16 of the Law on copyright provides:
‘1.      The reproduction of all or part of a literary, scientific or artistic work on an item designed for the reproduction of a work shall not be regarded as an infringement of the copyright in that work if the reproduction is made for ends that are neither directly nor indirectly commercial and serves exclusively for the own practice, study or use of the natural person making the reproduction.
2.      Payment of a fair remuneration in respect of the reproduction referred to in paragraph 1 shall be due to the creator of the work or his legal successors. The manufacturer or importer of the items referred to in paragraph 1 shall be liable for payment of the remuneration.
…’
The disputes in the main proceedings and the questions referred for a preliminary ruling
11      Pursuant to Article 16c(2) of the 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. 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 before the Rechtbank Den Haag (District Court, The Hague, Netherlands).
12      By judgment of 18 September 2019, that court dismissed that action, which was varied by judgment of 22 March 2022 delivered by the Gerechtshof Den Haag (Court of Appeal, The Hague, Netherlands), which held that no fair compensation within the meaning of Article 5(2)(b) of Directive 2001/29 and Article 16c of the Law on copyright was payable in respect of offline streaming copies, since those copies could not be regarded as ‘private copying’ for the purpose of the latter provision.
13      SdT and SONT then brought an appeal on a point of law against that judgment before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), which is the referring court.
14      That court is faced with the question whether making an offline streaming copy is capable, having regard to the circumstances in which it is made, of constituting a reproduction for private use for the purposes of Article 5(2)(b) of Directive 2001/29. In that regard, the referring court provides the following information.
15      Offline streaming copies are downloads or copies of works (music, films) placed offline and which are available to a user of a paid streaming service. The user may therefore play those downloaded copies even when he or she does not have internet access. The offline streaming copy is offered as an integral part of the provider’s subscription service. The provider is thereby pursuing a commercial objective.
16      Making an offline streaming copy satisfies the implementation conditions set out below. The user selects, by means of the functionality provided for that purpose in the streaming service’s app, the downloadable work which he or she wishes to have available offline. The provider then places the content selected by the user on a part of the user’s memory, which the provider specially selects and then makes available to the user. The user cannot determine the storage location, has no freedom of choice in that regard and is not able to move the content to a different location. The provider stores the content by means of an encryption method determined by it and decryptable only by that provider. The content remains accessible exclusively within the streaming app as a result of technological protection measures and cannot be transferred to another medium by the user. Once a period of time has elapsed, in particular, when the subscription comes to an end or in other cases covered by the terms of use, or if the copyright holder withdraws consent, the content stored on the user’s device is automatically deleted. The rightholder retains control over the works concerned. The rightholder may determine which works are made available to subscribers and may block access to offline streaming copies or delete a download.
17      In those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(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?’
Preliminary observations
18      It should be recalled, as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see, to that effect, judgments of 29 November 1978, Redmond, 83/78, EU:C:1978:214, paragraph 26; of 28 November 2000, Roquette Frères, C‑88/99, EU:C:2000:652, paragraph 18; and of 2 December 2025, Russmedia Digital and Inform Media Press, C‑492/23, EU:C:2025:935, paragraph 44 and the case-law cited).
19      In that regard, it must be stated that the referring court’s first and second questions together seek to determine whether making offline streaming copies, in circumstances such as those described in paragraphs 15 and 16 of the present judgment, is capable of falling within the exception relating to copying for private use, as referred to in Article 5(2)(b) of Directive 2001/29, read in conjunction with Article 5(5) of that directive.
20      Article 5(5) of that directive requires that the exceptions and limitations to the reproduction right are only to be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the holder of that right.
21      As is apparent from its wording, that provision simply specifies the conditions for the application of the exceptions and limitations to the reproduction right permitted by Article 5(2) of Directive 2001/29, namely that those exceptions and limitations are to be applied only in certain special cases, which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder. Article 5(5) of that directive does not therefore define the substantive content of the different exceptions and limitations set out in Article 5(2) of that directive, but takes effect only at the time when they are applied by the Member States (judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 25).
22      The Court concluded that Article 5(5) of Directive 2001/29 is not intended either to affect the substantive content of provisions falling within the scope of Article 5(2) of that directive or, inter alia, to extend the scope of the different exceptions and limitations provided for therein (see, to that effect, judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 26).
23      It follows that the first and second questions must be reformulated such that they relate solely to the interpretation of Article 5(2)(b) of Directive 2001/29.
The first and second questions
24      By its first and second questions, which will be examined together, the referring court is, in essence, asking whether Article 5(2)(b) of Directive 2001/29 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, falls within the scope of the private copying exception laid down in that provision.
25      It should be observed, as a preliminary point, that Article 5(2) of Directive 2001/29 lays down exceptions or limitations to the reproduction right laid down in Article 2 of that directive. Accordingly, the scope of the private copying exception, laid down in Article 5(2)(b) of that directive, is limited solely to acts of reproduction, excluding, inter alia, acts which fall within the scope of communication to the public, within the meaning of Article 3 of that directive.
26      It is therefore necessary to examine whether making available an offline streaming copy of a protected work which is made by the provider of a streaming service under the conditions described in paragraphs 15 and 16 of the present judgment constitutes a reproduction within the meaning of Article 2 of that directive, or whether, on the contrary, it falls within the scope of the rights laid down in Article 3 of that directive and, in particular, of the right of communication of works to the public.
27      Article 3(1) of Directive 2001/29 provides that Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
28      It is clear from that provision that the concept of ‘communication to the public’ involves two cumulative criteria, namely an act of communication of a work and the communication of that work to a public (judgment of 19 December 2019, Nederlands Uitgeversverbond and Groep Algemene Uitgevers, C‑263/18, ‘the judgment in Tom Kabinet’, EU:C:2019:1111, paragraph 61 and the case-law cited).
29      As regards, first, the concept of an ‘act of communication’, it must be pointed out that that concept covers any transmission of a protected work to the public not present at the place where the communication originates, irrespective of the technical means or process used (see, to that effect, judgments of 29 November 2017, VCAST, C‑265/16, EU:C:2017:913, paragraph 42
and the case-law cited, and the judgment in Tom Kabinet, paragraph 62).
30      It should also be noted that every transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question (judgment of 29 November 2017, VCAST, C‑265/16, EU:C:2017:913, paragraph 43 and the case-law cited).
31      In addition, as regards the concept of ‘making available to the public’, within the meaning of that same provision, which forms part of the wider concept of ‘communication to the public’, the Court has held that, in order to be classified as an act of making available to the public, an act must meet, cumulatively, both conditions set out in Article 3(1) of Directive 2001/29, namely that members of the public concerned
may access the protected work from a place and at a time individually chosen by them, irrespective of whether the persons comprising that public avail themselves of that opportunity (see, to that effect, the judgment in Tom Kabinet, paragraph 63 and the case-law cited).
32      As regards, specifically, the making available to the public of a work or a protected article in such a way that members of the public may access it from a place and at a time individually chosen by them, it is apparent from the explanatory memorandum in the proposal for the directive that ‘the critical act is the “making available of the work to the public”, thus the offering [of] a work on a publicly accessible site, which precedes the stage of its actual “on-demand transmission”’, and that ‘it is not relevant whether any person actually has retrieved it or not’ (the judgment in Tom Kabinet, paragraph 64). The same applies, in principle, where the work is made available via a streaming platform on which it is open to the user to request a copy to be made on his or her device so that that user can access it from a place and at a time individually chosen by him or her
33      Second, in order to be categorised as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, the protected works also must actually be communicated to the ‘public’, that communication being directed at an indeterminate number of potential recipients (see, to that effect, the judgment in Tom Kabinet, paragraph 66 and the case-law cited).
34      It is also apparent from the explanatory memorandum in the proposal for the directive, first, that the right of communication to the public is also pertinent when several unrelated persons (members of the public) may have individual access, from different places and at different times, to a work which is publicly available on a website and, second, that the public consists of individual members of the public (the judgment in Tom Kabinet, paragraph 67).
35      In that regard, the Court has previously had occasion to clarify, first, that the concept of ‘public’ involves a certain de minimis threshold, which excludes from that concept a group of persons concerned that is too small, and, second, that in order to determine that number, the cumulative effect of making a protected work available, by downloading, to potential recipients should be taken into consideration. Account should therefore be taken, in particular, of the number of persons able to access the work at the same time, but also of how many of them may access it in succession (the judgment in Tom Kabinet, paragraph 68).
36      In the present case, it is apparent from the request for a preliminary ruling that the offline streaming functionality at issue in the main proceedings, involving a local copy on the device of the user of the protected works streaming platform, is available to a group of subscribers such that members of the public may access them at a place and at a time individually chosen by them. Such a service must therefore, in principle, be regarded as the communication of a work to the public, within the meaning of Article 3(1) of Directive 2001/29. Similarly, it appears that any interested person may subscribe to such streaming platforms and that a number of subscribers may, simultaneously, request access to the same work for offline streaming. It must therefore be held that the number of persons who may have access, in parallel or in succession, to the same work by means of that functionality is significant.
37      Consequently, subject to the verifications which it is for the referring court to undertake, taking into account all the relevant factors, 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 such a way that members of the public may access it from a place and at a time individually chosen by them, in accordance with Article 3(1) of Directive 2001/29.
38      In such a situation, the act at issue cannot be classified as a reproduction, for the purpose of Article 2 of that directive, with the result that, in accordance with what has been stated in paragraph 25 of the present judgment, that act cannot fall within the scope of Article 5(2)(b) of that directive.
39      If, however, the referring court takes the view that the acts at issue in the main proceedings must be classified as acts of ‘reproduction’, for the purpose of Article 2 of that directive, it would then be for that court to ascertain whether the conditions laid down in Article 5(2)(b) are satisfied in order to determine whether the fair compensation sought must in fact be paid by the defendants in the main proceedings.
40      Article 5(2)(b) of Directive 2001/29 states that Member States may provide for exceptions or limitations to the reproduction right 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, on condition that the rightholders receive fair compensation.
41      It must be stated, for that purpose, that the Court has held that copying by natural persons acting in a private capacity must be regarded as an act likely to cause harm to the rightholder concerned, where it is done without seeking prior authorisation from that rightholder (judgment of 29 November 2017, VCAST, C‑265/16, EU:C:2017:913, paragraph 33 and the case-law cited).
42      In that regard, it is apparent from Article 5(2)(b) of Directive 2001/29, read in conjunction with Article 6 of that directive, that the natural person must have available to himself or herself and must have control of a copy of the work in question in order to make a reproduction for private use. An act of reproduction falls within the exception laid down in Article 5(2)(b) of that directive only where it is undertaken by or on the initiative of a natural person. However, that cannot be the case where, by means of the technological measures referred to in Article 6, the holder of the copyright in the work concerned prevents, technically, such an act. Moreover, as the Advocate General observes in point 14 of his Opinion, it is apparent from the case-law that a natural person can benefit from the private copying exception only if he or she has previously gained access to the work concerned in a form which serves as the source from which the reproduction is made. In addition, such access must be lawful, in other words, gained with the permission of the copyright holder. The private copying exception cannot deprive that rightholder of his or her right to prohibit or authorise access to works or subject matter of which natural persons wish to make private copies (see, to that effect, judgment of 29 November 2017, VCAST, C‑265/16, EU:C:2017:913, paragraph 39).
43      In the present case, the users of a streaming service do not hold the source of the copy and they access the works concerned, in the form of offline streaming copies, only once those works have been copied. The work selected by the user is made available by the provider of the streaming service which places it on part of the memory of the device subject to the conditions referred to in paragraph 16 of the present judgment. Additionally, in that context, the provider of the streaming service does not simply provide a reproduction service to the user, rather it makes that work available to the user in the form of an offline streaming copy, while retaining control over it. As the Advocate General stated in point 15 of his Opinion, it is irrelevant in that regard that the user may also access the same works via streaming. Indeed, streaming is not the source of the offline streaming copy and actually accessing specific works via streaming does not constitute a pre-requisite for obtaining such a copy.
44      In those circumstances, it must be stated that, since a natural person has access to the work concerned only once the copy thereof has been made by the provider of the streaming service, that copy cannot be regarded as having been made by that person for the purpose of Article 5(2)(b) of Directive 2001/29. Subject to the verifications which it is for the referring court to undertake, the source of the copy is held by the provider of the streaming service, and not by the natural person concerned.
45      In addition, it should be recalled that, once the offline streaming copy has been made by the provider of the streaming service at the user’s request, that copy is not freely available to the user. Indeed, as stated in paragraph 16 of the present judgment, that service provider has put in place measures, by means, inter alia, of an encryption method, such that that copy may not be moved, transferred or reproduced by the user. In addition, that copy is automatically erased when the user’s subscription ends or in other cases provided for in the conditions of use and it may be deleted where the copyright holder withdraws consent. Since the copyright holder retains such control, it must be assumed, subject to the verifications which it is for the referring court to undertake, that the offline streaming copy is made with the authorisation of that holder, with the result that no harm can be found in terms of the case-law cited in paragraph 41 of the present judgment.
46      Furthermore, it must be pointed out that, in such circumstances, the measures referred to in the preceding paragraph of the present judgment fall within the scope of ‘technological measures’, which is defined in Article 6(3) of Directive 2001/29 as referring to any technology, device or component that, in the normal course of its operation, is designed, inter alia, to prevent or restrict acts, in respect of works or other subject matter, which are not authorised by the rightholder of any copyright, since those acts constitute, as is apparent from Articles 2 to 4 of that directive, the reproduction, communication of works to the public and making them available to the public, and the distribution of the original or copies of the works. That concept is defined broadly and includes application of an access control or protection process, such as encryption, scrambling or other transformation of the work or subject matter or a copy control mechanism (see, to that effect, judgment of 23 January 2014, Nintendo and Others, C‑355/12, EU:C:2014:25, paragraphs 24, 25 and 27).
47      In the present case, the technological measures put in place by the provider of a streaming service for offline streaming copies are designed to prevent users from being able to move, transfer or reproduce those copies outside the service concerned, and to ensure that the copyright holder retains control over those copies, allowing that copyright holder the possibility to block access to them, with the result that users cannot have the offline copy available to themselves if that copyright holder does not provide authorisation. Consequently, a copy subject to such technological measures which protect that copyright holder against the acts for which the copyright holder’s authorisation is required cannot, in principle, be classified as ‘private copying’ for the purpose of Article 5(2)(b) of that directive.
48      In the light of all the foregoing considerations, the answer to the first and second questions is that Article 5(2)(b) of Directive 2001/29 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.
The third question
49      By its third question, the referring court is, in essence, asking whether 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 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.
50      It should be noted that Article 2 of Directive 2001/29 provides that Member States are to grant authors the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part of their works, while reserving to those Member States the option, under Article 5(2) of that directive, of providing for exceptions and limitations to that right (judgment of 10 April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph 21).
51      The Court has held in that regard that where Member States decide to introduce the private copying exception into their national law, they are required, in particular, to provide, pursuant to Article 5(2)(b) of that directive, for the payment of ‘fair compensation’ to holders of the exclusive right of reproduction (see, to that effect, judgments of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 30, and of 16 June 2011, Stichting de Thuiskopie, C‑462/09, EU:C:2011:397, paragraph 22).
52      It is true that the Court has already held that where a Member State has decided, pursuant to Article 5(2) of Directive 2001/29, to exclude, from the material scope of that provision, any right for rightholders to authorise reproduction of their works for private use, any authorising act a rightholder may adopt will be devoid of legal effects under the law of that State. The Court concluded that such an act has no effect on the harm caused to rightholders due to the introduction of the measure depriving them of that right and cannot, therefore, have any bearing on the fair compensation owed, whether it is provided for on a compulsory or an optional basis, under the relevant provision of that directive (judgment of 5 March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph 65 and the case-law cited).
53      However, such a conclusion applies only in the situation, referred to in paragraph 42 of the present judgment, in which natural persons are likely to have available to themselves and to have control over a copy of the work concerned. Indeed, the holder of the copyright in that work continues to be able to put in place technological measures referred to in Article 6 of Directive 2001/29 and, by that means, to prevent or limit unauthorised acts of reproduction, even if they are for private use. To that effect, it should be noted that Article 6(1) of that directive provides that Member States must provide appropriate legal protection against the circumvention of any effective technological measures. Accordingly, the case-law referred to in the preceding paragraph of the present judgment cannot be understood as meaning that that exception constitutes a right for natural persons to make a copy of a work for private use and that any authorisation by a copyright holder is devoid of legal effect, including where that rightholder retains control over its work by means of technological measures.
54      It is also from that perspective that it is necessary to understand the case-law of the Court which emphasises that the EU legislature intended to reserve that exception only for cases where the private copy of the work concerned has caused harm to the holder of the copyright in that work in so far as that rightholder loses an opportunity to exercise its exclusive right. In support thereof, the word ‘compensate’ in recitals 35 and 38 to Directive 2001/29 expresses the intention of the European Union legislature to establish a specific compensation scheme triggered by the existence of harm to the detriment of the rightholders, which gives rise, in principle, to the obligation to ‘compensate’ them (see, to that effect, judgment of 21 October 2010, Padawan, C‑467/08, EU:C:2010:620, paragraph 41).
55      However, that means that it is not possible to obtain such fair compensation where the holder of the copyright in the work which has been copied has retained control over that work by means of technological measures and has given its authorisation for that copy, in particular by means of a licence.
56      In the present case, the referring court suggests that the holder of the copyright in the work concerned might receive, by means of a licence fee which it negotiates with the provider of the streaming service, remuneration in part calculated according to
the number of times an offline streaming copy is played by the user of that service. On the basis of those circumstances and any technological measures put in place, it could be found that the rightholder is in a position to supervise the use of its protected works by persons who have lawfully access to it, and that authorising offline streaming copies falls within the scope of normal exploitation by the rightholder, for which the rightholder may negotiate remuneration by exercising its copyright.
57      In that respect, it must be stated that 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 laid down in Article 5(2)(b) of Directive 2001/29. All that matters is the fact that the holder of the rights protecting the work concerned has retained control over that work by means of technological measures and that the rightholder was able to authorise those copies in so far as that fact means that rightholder has thereby exercised its right to prohibit or authorise access to the work and that, consequently, those copies cannot be regarded as the cause of harm suffered by that rightholder.
58      By contrast, in the situation, referred to in paragraph 42 of the present judgment, in which natural persons are likely to have available to themselves and to have control over a copy of the work concerned, authorisation by the holder of copyright in that work has no legal effects. In that situation, any remuneration paid in exchange for that authorisation has no basis in so far as the acts of reproduction covered by the private copying exception, as referred to in Article 5(2)(b) of Directive 2001/29, confer a right only to fair compensation, within the meaning of that provision.
59      In the light of the foregoing considerations, the answer to the third question is that 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.
Costs
60      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
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.
[Signatures]
*      Language of the case: Dutch.