62024CC0496
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 2 October 2025 (
1
)
Case C‑496/24
Stichting Onderhandelingen Thuiskopievergoeding,
Stichting de Thuiskopie
v
HP Nederland B.V.,
Dell B.V.,
Stichting Overlegorgaan Blanco Informatiedragers
(Request for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands))
(Reference for a preliminary ruling – Approximation of laws – Intellectual property – Copyright and related rights – Directive 2001/29/EC – Article 2 – Reproduction right – Article 3 – Right of communication to the public of works – Article 5(2)(b) and Article 5(5) – Exceptions and limitations – Reproduction for private use – Fair compensation – Online communication to the public of works – Paid streaming service – Copy for offline use)
Introduction
1.
Copyright law in the European Union provides for a large number of exceptions from authors’ exclusive rights; these include an exception allowing natural persons to reproduce works, without permission, for their own private use. With a view to making good the losses suffered by authors because of that exception and as a result of the fact that users do not need to acquire a larger number of copies of the work in question, EU law provides for payments by way of compensation. In the practice of the Member States, this compensation is most often financed from a ‘reprographic fee’ levied from the manufacturers or importers of storage media and devices that can be used by natural persons to reproduce protected works. The fee is then passed on to the purchasers of those storage media and devices through an increase in their price; it follows that, as a rule, the burden of financing the compensation relating to the aforesaid exception ultimately falls on the persons entitled to make use of that exception. The Court has found this system to be compatible with the law of the European Union. (
2
)
2.
Institutions appointed by the Member States are responsible for levying the reprographic fee and paying it out in the form of compensation, and this fee plays a vitally important role as a steady source of income for authors. There is accordingly a temptation to expand the scope of the aforesaid exception, and consequently of the reprographic fee as a source of income, beyond the limits resulting from the relevant provisions of law and the goals and purposes behind their adoption, true to the popular saying that, to a person holding a hammer, everything looks like a nail. It would appear that the institutions responsible for levying the reprographic fee in the Netherlands have fallen prey to this illusion, as they have stated that a service involving the communication of copies of works for offline use, as performed by the providers of on-demand streaming services, (
3
) is subject to the fee, and thus is covered by the aforesaid exception.
3.
It should however be noted that compensation under the exception relating to reproduction for private use does not constitute an aim in and of itself. It serves to make good the losses suffered in situations where the application of that exception is permitted and warranted, and sometimes even necessary. It is not however intended to act as a substitute for the customary contractual mechanisms in situations where authors are in a position to enforce their exclusive rights and thus generate income from the use of their works, even if they regard that income as inadequate. The present case will provide the Court with an opportunity to clarify the limits of applicability of the aforesaid exception in the light of earlier case-law relating to similar situations.
Legal context
European Union law
4.
Articles 2, 3, 5 and 6 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 (
4
) provide in particular that:
‘Article 2
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;
…
Article 3
1.   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.
…
Article 5
…
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.
Article 6
…
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
5.
Directive 2001/29 was transposed into Netherlands law through the provisions of the Auteurswet 1912 (1912 Law on Copyright). An exception concerning the reproduction of works for private ends is provided for in Article 16c of that law. Paragraph 2 of that article provides for payments to be made to persons entitled to fair compensation; this compensation is financed from the reprographic fee levied from importers and manufacturers of devices and storage media that can be used for the reproduction of works for private use. In accordance with Articles 16d and 16e of the 1912 Law on Copyright, the Stichting de Thuiskopie (‘the SdT’) is responsible for levying that fee, the basis for assessment and amount of which are determined by the Stichting Onderhandelingen Thuiskopievergoeding (‘SONT’), which is a foundation under Netherlands law whose members include representatives of organisations bringing together rightholders as well as entities obliged to pay the fee. The reprographic fee schedule for 2018 to 2020 adopted by SONT included ‘paid streaming services’ as a ‘source to be taken into account’.
Background to the dispute, conduct of the proceedings and questions referred for a preliminary hearing
6.
HP Nederland B.V. and Dell B.V. are obliged to pay the reprographic fee, while the Stichting Overlegorgaan Blanco Informatiedragers represents all entities obliged to pay that fee. Those entities brought an action against the SdT and SONT before the rechtbank Den Haag (District Court, The Hague, Netherlands) and moved for a finding that the reprographic fee does not cover a service involving the communication of copies for offline use (offline streaming copies) performed in connection with an on-demand internet streaming service for musical or audiovisual works.
7.
According to the referring court’s findings of fact, this service means that a subscriber to an on-demand streaming service can select any available works from the catalogue in order to make use of them offline. The service provider then creates a copy of the selected works in a specific part of the memory on the subscriber’s device or devices that is made available to the service provider for this purpose. That copy is encrypted in such a way that the subscriber can use the work, but typically only with the help of the service provider’s application; the user does not therefore have the capacity to dispose of the copy, or in other words cannot create further copies, change the location of the copy or arbitrarily transfer it to another device or medium. Once the period for which the copy was made available has elapsed, and in any event at the point in time when performance of the main (streaming) service ends, the copy is removed from the device. The service provider may furthermore remove it in the cases specified in the rules and regulations governing provision of the service.
8.
In a judgment handed down on 18 September 2019, the rechtbank Den Haag (District Court, The Hague) dismissed the action. That ruling was however set aside in a judgment handed down by the Gerechtshof Den Haag (Court of Appeal, The Hague, Netherlands) on 22 March 2022. The Court of Appeal found that, in a case where the service involves the communication of a copy for offline use in the manner described in point 7 above, reproduction for private use within the meaning of Article 16c of the 1912 Law on Copyright and Article 5(2)(b) of Directive 2001/29 does not take place. An appeal on a point of law has been brought before the referring court by the SdT and SONT against that judgment of the Court of Appeal.
9.
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)
Can a reproduction with the characteristics described above in [point 7 of this Opinion] (offline streaming copy), having regard also to the three-step test (Article 5(5) of [Directive 2001/29]), 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 [Directive 2001/29], 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?’
10.
The request for a preliminary ruling was received by the Court on 17 July 2024. Written observations were submitted by the parties to the main proceedings, the French Government and the European Commission. Those participants were represented at the hearing held on 19 June 2025.
Analysis
11.
The referring court has referred three questions for a preliminary ruling; as all of those questions concern the same issue, however, I propose to consider them together. The referring court seeks, in essence, to ascertain whether Article 5(2)(b) of Directive 2001/29 is to be interpreted as meaning that a subscriber to an on-demand internet streaming service whereby protected works are communicated is reproducing those works for private use within the meaning of the aforesaid 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 directive, retains full control over the location of the 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. I propose to supplement the answer to this question with an interpretation of Article 3 of the aforesaid directive.
12.
My analysis is based on the assumption (which did not appear to be disputed in the main proceedings) that the two conditions for application of the exception set out in Article 5(2)(b) of Directive 2001/29, namely that the subscriber in question is a natural person and that he or she makes use of the aforesaid service for private ends, have been satisfied.
13.
It is also undeniable that the subscriber does not independently reproduce the work, but that that reproduction is carried out by the service provider at the subscriber’s request. By finding that the wording ‘reproductions … made
by a natural person’ used in Article 5(2)(b) of Directive 2001/29 also encompasses the use by that natural person of services provided by a third party, (
5
) the Court has however accepted the application of the relevant exception in such a situation.
14.
Nevertheless, a natural person can make use of the aforesaid exception only if he or she has previously gained access to the work in a form which serves as the source from which the reproduction is made, (
6
) whereby that access must be lawful, or in other words gained with the permission of the rightholders. (
7
) In a situation where a natural person gains access to the work only as a result of its reproduction, however, that reproduction cannot be deemed to have been carried out by that natural person within the meaning of Article 5(2)(b) of Directive 2001/29. It is carried out by the person that grants access to the work, and – if this takes place remotely, digitally and outside the private sphere of the person granting access – constitutes communication to the public of the work within the meaning of Article 3 of that directive. (
8
)
15.
We are dealing with precisely such a situation in the case of the service described in point 7 of this Opinion, where a subscriber gains access to a copy for use without access to the internet (an offline streaming copy) as a result of that copy being created. It is furthermore irrelevant to the present case that the user may also access the same works by streaming them, as streaming is not the source of the reproduction and actually accessing specific works via streaming is not a prerequisite for obtaining copies thereof for offline use. (
9
)
16.
I cannot therefore accept the argument put forward by the SdT and SONT to the effect that subscribers’ access to works via streaming serves as a sufficient basis for a finding that the communication of copies for offline use is covered by the exception set out in Article 5(2)(b) of Directive 2001/29. It is true that, from a commercial perspective, the service involving the communication of copies for offline use is an additional service related to the main streaming service, because only individuals who subscribe to the latter service can use the former, and both encompass the same catalogue of works. From a technical perspective, however, this is a separate and stand-alone service. (
10
) To put it another way, two potential routes exist for accessing the same works, but they exist in isolation from each other, and one does not duplicate the other. From the perspective of copyright, the two services constitute distinct activities involving the use of works, not least because the preconditions for using those works are very different in each case. A streaming service requires access to a sufficiently fast internet connection at all times, and is frequently subject to geographical restrictions (geoblocking). Those two inconveniences are absent in the case of copies for offline use.
17.
The situation here is therefore analogous to that examined in the case concluded by the judgment in VCAST. The reproduction of works as part of that service cannot be deemed to have been performed by natural persons (subscribers) within the meaning of Article 5(2)(b) of Directive 2001/29; instead, it should be ascribed to the service provider which communicates the works to its subscribers in this way. The creation of reproductions is thus an integral part of the activity of making those works available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them, within the meaning of Article 3 of that directive; this activity is performed by the service provider.
18.
The SdT and SONT, as well as the French Government, are wrong to argue that a copy for offline use constitutes a reproduction made by a natural person within the meaning of Article 5(2)(b) of Directive 2001/29, because it is the subscriber who initiates the creation of that copy. The making available of works to the public in such a way that members of the public may access them from a place and at a time individually chosen by them, as referred to in Article 3 of that directive, takes place at the user’s request. The user must therefore initiate the process of communication by placing a request (in this case, a request for a copy to be created that can be used offline). This does not however mean that every instance where a copy of a work is communicated on demand to a user automatically qualifies as reproduction by a natural person for his or her private use and is covered by the provisions of Article 5(2)(b) of the aforesaid directive. Such an interpretation would render meaningless a significant portion of the provisions set out in Article 3 of the directive.
19.
There are, however, two significant differences between the present case and the case concluded by the judgment in VCAST. First, while the activity forming the subject of that case was carried out without the rightholders’ permission, there is no indication in the present case that the service involving the communication of copies for offline use is of an irregular nature. Secondly, the present case – by way of contrast to the case concluded by the judgment in VCAST – does not relate to works being communicated originally by one entity and subsequently by another. The communication of works both via streaming and in the form of copies for offline use is carried out by the same entity and constitutes an original communication, as the works in digital format are transmitted directly from the service provider’s server to the subscriber’s device. It follows that the Court’s case-law stating that copyrighted works are deemed to have been communicated to the public if they are communicated to a new public or using specific technical means also does not apply to the present case. (
11
) That principle only applies in situations where works that have already been communicated to the public previously by another entity are communicated again. (
12
)
20.
I therefore share the Commission’s view that the situation in the main proceedings should be examined not in the light of Article 5(2)(b) of Directive 2001/29, but in the light of Article 3 thereof.
21.
That interpretation is supported by a number of other arguments.
22.
First, the viewpoint expressed by the SdT and SONT at the hearing to the effect that the application of Article 5(2)(b) of Directive 2001/29 does not require loss of control by the rightholders over use of the works is inaccurate. Loss of control is an inherent feature of a copyright exception, as such an exception involves users being able to perform activities that typically fall within the scope of a copyright monopoly without the permission of, and therefore outside the control of, rightholders. The exception provided for in Article 5(2)(b) of the directive entitles natural persons to reproduce works for private use. On the one hand, it follows that the reproduction of works under that exception, by definition, takes place outside rightholders’ control. On the other hand, however, it must be technically feasible for users to reproduce the works; in other words, users must be able to access a work (lawfully, as the Court points out) in a form which allows them to make copies of it.
23.
Such a situation does not arise here. Thanks to the technological measures put in place, streaming service providers, acting on behalf of rightholders as their licensees, retain control over the reproduction of works communicated in the form of copies for offline use. Those copies are created by the service provider and stored on the user’s device under strictly defined and effectively monitored conditions. Contrary to the assertions of the SdT and SONT, as well as the French Government, therefore, the purpose of the technological measures is not to prevent users from exceeding the limits of the exception provided for in Article 5(2)(b) of Directive 2001/29, but to make it impossible for them to utilise that exception at all by reproducing works without the permission of the rightholders. In this instance, therefore, a copyright exception is not being applied, and instead those rights are being exercised in the normal fashion.
24.
The SdT and SONT are wholly incorrect in their claim that the permission granted by rightholders to create copies for offline use has no legal force, and those entities cannot levy fees on that basis, as the creation of those copies is covered by the exception set out in Article 5(2)(b) of Directive 2001/29, and consequently the rightholders are entitled to the fair compensation provided for thereunder.
25.
The parties take it for granted that the creation of a copy for offline use is covered by the aforesaid exception, and conclude, on the basis of that assumption, that rightholders’ opportunities for action are limited by that exception. In reality, however, exactly the opposite is true; the source used to create the copy for offline use is not at the disposal of the users, but at the disposal of the rightholders’ licensees, and consequently users are unable to make reproductions under the aforesaid exception and must ask such licensees to communicate copies (in return for which the licensees may charge a fee).
26.
The judgments cited by the SdT and SONT (
13
) do not concern the determination of the scope of application of the exception set out in Article 5(2)(b) of Directive 2001/29, but instead concern the manner in which the fair compensation provided for under that provision should be calculated. They are therefore based on the tacit assumption that the conditions for application of the exception are satisfied, and it was in this context that the Court found that any permission that may have been granted by rightholders does not affect the right to fair compensation. As noted by the Court, ‘if a rightholder allows a natural person to use [a file containing protected works], by
making [it] available to that person, the simple fact that those files may be used for the purpose of reproducing protected works justifies the application of the private copying levy.’ (
14
) In the present case, however, we have a situation where a rightholder or a licensee of that rightholder communicates files containing protected works to natural persons, but those persons have no opportunity to use those files to reproduce the relevant works, and consequently there is no justification for levying a reprographic fee.
27.
I would add, as an aside, that Directive 2001/29 expressly prohibits Member States from adopting provisions that would force rightholders to do away with technological safeguards in a situation such as that in the present case. Although the second subparagraph of Article 6(4) of that directive, read in conjunction with the first subparagraph of that provision, allows Member States to take measures protecting the right of users to utilise the exception provided for in Article 5(2)(b) of Directive 2001/29, the fourth subparagraph of Article 6(4) thereof excludes that option in relation to works made available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them, or, in other words, in a situation such as that in the present case. A derogation introduced by a Member State with the scope suggested by the SdT and SONT would therefore be in breach of the obligation to protect technological safeguards which arises under Article 6(1) of that directive.
28.
Secondly, Article 5(5) of Directive 2001/29 requires that the exceptions from exclusive rights provided for in that directive (i) are to be applied only in special cases, (ii) are not to conflict with a normal exploitation of the works, and (iii) are not unreasonably to prejudice the interests of rightholders. This is the ‘three-step test’, which is enshrined in rules of international law that are binding on the European Union. (
15
)
29.
In my view, if a service involving the communication of copies for offline use were to be covered by the exception provided for in Article 5(2)(b) of the directive, this would be incompatible with the second step of the aforesaid test. After all, such a service constitutes a normal use of works from which rightholders are able to derive financial benefits; at the same time, it should be noted that that use does not depend on the works being communicated via streaming. Use of this kind would be hindered if copies of this type were to fall within the scope of the aforesaid exception, as it would cause ambiguity for users and call into question whether it is reasonable for rightholders or their licensees to levy additional fees for the communication of those copies. Article 5(5) of Directive 2001/29 thus precludes the application of the aforesaid exception to the service that forms the subject of the present case.
30.
Thirdly and lastly, the very wording of Article 5(2)(b) of Directive 2001/29 appears to preclude the application of the reprographic fee to a streaming service on the grounds that it constitutes a service that involves the communication of copies for offline use. After all, that provision states that the fair compensation for which it provides, which is financed by the reprographic fee, should take account of the application of the technological measures referred to in Article 6 of that directive. At the same time, in the case of services involving the communication of works delivered under the conditions described in point 7 of this Opinion, the technological measures used allow rightholders or their licensees to retain full control over the reproduction of works, and consequently those entities do not suffer any losses as a result of users making copies for private use. In this instance, therefore, there is again no justification for fair compensation.
31.
My proposed interpretation is also not precluded by the objectives of Directive 2001/29 as recalled in the second question referred for a preliminary ruling, such as a high level of copyright protection, a fair balance between the interests of rightholders and the interests of users, and a coherent and technologically neutral application of exceptions by the Member States.
32.
As I have noted above, the use of technological measures means that rightholders and their licensees have full control over the communication and use of copies for offline use, and are able to derive income from works being used in this way. If that form of communication were made subject to the exception provided for in Article 5(2)(b) of Directive 2001/29, this would directly oppose their interests and would consequently undermine a high degree of copyright protection, the achievement of which is one of the objectives of that directive.
33.
There can also be no question of an adverse impact on users’ legitimate interests or on the fair balance between their interests and rightholders’ interests. The exception provided for in Article 5(2)(b) of Directive 2001/29 renders lawful the activities carried out by users in their private sphere, outside the control of those entities. If copies are communicated by a streaming service provider for offline use, this takes place within the framework of the relations between that provider and the user, and therefore outside the user’s private sphere and under the control of rightholders. Users do not therefore have any legitimate interest in obtaining such a copy under the copyright exception.
34.
As regards technological neutrality, contrary to the SdT and SONT’s assertions, a streaming service is very different in technological terms from the other technologies referred to by those parties to the proceedings, such as CDs and DVDs or radio and television broadcasts.
35.
In the case of a CD or DVD, the user pays a one-off price and receives in return a recording of a limited number of works (typically several to a dozen musical works or one audiovisual work) together with a physical medium. These works can be used in any manner whatsoever within the user’s private sphere; this includes reproducing them on the basis of the exception set out in Article 5(2)(b) of Directive 2001/29. On the other hand, a radio or television broadcast is a scheduled service, which means that the broadcaster determines which works will be broadcast and at what time, and the audience has the option of listening to or watching them at that time. The audience can also make a recording of the works for private use, but only of those works that are broadcast, only at the time when they are broadcast, and only where this is possible from a technological point of view.
36.
In contrast, the streaming service under consideration in the present case is an on-demand internet service by means of which users can access an enormous number of works at any time in return for a relatively low inclusive price. (
16
) The service does not, however, provide an option to record the content communicated via streaming, as this would render the entire venture economically unviable given that customers could copy the works they are interested in within a short space of time and then terminate their subscriptions. An on-demand streaming service is therefore functionally dissimilar to CDs and DVDs or to radio and television broadcasts. These types of use are also wholly different from the point of view of copyright. The principle of technological neutrality does not therefore require the streaming service and the two other technologies to be treated the same.
37.
There is also no justification for making the communication of copies for offline use subject to the exception set out in Article 5(2)(b) of Directive 2001/29 and the fair compensation provided for thereunder on the ground of the problem (identified by the SdT and SONT) whereby the remuneration paid by licensees to rightholders in connection with that communication (or more broadly in connection with the on-demand streaming of works) is allegedly too low. As I have noted in the introduction to this Opinion, that compensation is intended to make good the harm suffered by rightholders in connection with the legalisation of actions by users within a private sphere over which the rightholders have no control. Its purpose is not, however, to replace the customary mechanisms for the use of works and the remuneration of rightholders on that basis. Pursuant to Article 18 et seq. of Directive (EU) 2019/790, (
17
) if that compensation is inadequate the Member States are to take the appropriate steps to resolve the problem.
38.
In view of the above, I propose that the answer to the questions referred for a preliminary ruling should be as follows: Article 5(2)(b) of Directive 2001/29 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; Article 3 of that directive must be interpreted as meaning that communication of the works in this way is equivalent to the service provider making them available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them, within the meaning of that provision.
Conclusions
39.
In view of all of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) as follows:
(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.
(2)
Article 3 of that directive
must be interpreted as meaning that the communication of works for offline use as referred to in point 1 of this operative part is equivalent to the service provider making them available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them, within the meaning of that provision.
(
1
)	Original language: Polish.
(
2
)	See judgment of 21 October 2010, Padawan (C‑467/08, EU:C:2010:620, point 2 of the operative part).
(
3
)	This service involves communicating works via the internet in such a way that the packages of data making up the file containing the work that are transmitted by the service provider are saved to the user’s cache and played without waiting for the entire file to be saved, before being replaced with subsequent packages. This allows the work to be used immediately, but requires constant access to the internet (the user must be online at all times).
(
4
)	OJ 2001 L 167, p. 10.
(
5
)	See to that effect, inter alia, judgment of 29 November 2017, VCAST (C‑265/16, ‘the judgment in VCAST’, EU:C:2017:913, paragraph 35) (emphasis added).
(
6
)	See, to that effect, the judgment in VCAST (paragraph 39).
(
7
)	Judgment of 10 April 2014, ACI Adam and Others (C‑435/12, EU:C:2014:254, paragraph 31).
(
8
)	See, to that effect, the judgment in VCAST (paragraphs 40 to 52).
(
9
)	What is more, it is irrelevant to the present case that it is technologically possible to record content made available via streaming. This case pertains to the service described in point 7 of this Opinion, which involves a copy of a work being created not by the user (by recording the streamed content), but by the service provider (by reproducing the work on the user’s device).
(
10
)	By way of an example, the rules and regulations governing provision of the Spotify Premium service, which is a typical example of an on-demand streaming service, provide for the option of making copies of 10000 works for offline use on a maximum of five devices, with the sole requirement being that it is necessary to connect to the internet at least once every 30 days in order to verify that the subscription is still valid. In practice, therefore, this makes it possible to eliminate completely the need to communicate the works via streaming.
(
11
)	See, most recently, judgment of 20 June 2024, GEMA (C‑135/23, EU:C:2024:526, paragraph 43).
(
12
)	See judgments of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764, paragraphs 40 to 42), and of 7 March 2013, ITV Broadcasting and Others (C‑607/11, EU:C:2013:147, paragraphs 24 to 26, 37 [and] 38).
(
13
)	Judgments of 27 June 2013, VG Wort and Others (C‑457/11 to C‑460/11, EU:C:2013:426), [and] of 5 March 2015, Copydan Båndkopi (C‑463/12, EU:C:2015:144).
(
14
)	Judgment of 5 March 2015, Copydan Båndkopi (C‑463/12, EU:C:2015:144, paragraph 64) (emphasis added).
(
15
)	See Article 10(2) of the WIPO Copyright Treaty adopted in Geneva on 20 December 1996 and approved on behalf of the European Community in Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6).
(
16
)	By way of an example, an individual Spotify Premium subscription currently costs around EUR 13 per month in Luxembourg, or in other words less than the average price of a CD.
(
17
)	Directive of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ 2019 L 130, p. 92).