The CJEU has recently handed down a significant ruling relating to offline streaming of copyright works and the exception for ‘private copying’ available under EU copyright law.
In certain EU countries, copyright authors are entitled to a levy from the manufacturers of computers, tablets and smartphones called a ‘device levy’ as compensation for the copying of copyright works on personal devices such as copying a song from a CD onto a laptop. Use in this way is classed as a ‘permitted use’ under the Copyright Directive 2001/29 in the EU. However, in recent years, the ability to download and stream copyright works offline on platforms such as Netflix has sparked the question as to whether this counts as ‘private use’ and thus whether the authors of such copyright works are due levies from manufacturers.
Copyright groups in the Netherlands have pushed for the treatment of offline downloads as private copies under EU permitted use which would in turn entitle the copyright owners of those works to device levies from manufacturers. Two Dutch collecting foundations brought a claim for such levies against HP and Dell in the Netherlands. The Dutch courts were split on this decision; the Supreme Court of the Netherlands therefore referred the question to the CJEU for clarification.
In the CJEU judgement of 16 April 2026, the judge found that offline storage is not a ‘private copy’ but rather a public access option on the basis that the ‘copy’ is not made by the individual themselves, but that it is the provider (such as Netflix) that makes the copy. When the user carries out the action of downloading/ saving the content offline, this triggers the provider to store the content, and it is therefore a part of the streaming service itself. The provider retains control over the copy throughout. Therefore, it cannot be said that it is a ‘private copy’ meaning that device levies are not due.
Copyright users ordinarily receive royalties from streaming services for offline streaming in either case, not through device levies. The ruling of the CJEU here confirms that this is the correct legal approach. The case will now return to the Supreme Court in the Netherlands following the CJEU’s guidance.
If you have any questions on the above, please do not hesitate to contact the team at McDaniels Law on 0191 281 4000 or legal@mcdanielslaw.com.
