Downloading shows for offline use in EU doesn't create a 'private copy'

(CN) — Saving a show for the subway ride home might feel like making your own copy, but Europe’s top court said Thursday it isn’t, a ruling that blocks new fees on tech companies like HP and Dell and sharpens the line around what counts as a “private copy.”

Dutch copyright groups had pushed to treat offline downloads from streaming services like any other personal copy, a move that would have required companies like HP and Dell to help fund compensation for creators through device levies. The companies argued those downloads are simply part of a paid streaming service. After Dutch courts split, the country’s supreme court asked the Court of Justice of the European Union to step in.

The judges sided with the tech companies in a ruling initially available in French, saying downloading a film or song for offline viewing through a streaming app like Netflix or Spotify does not give users real control over the file.

“The making available, by means of an offline streaming copy, of a protected work, carried out by the provider of a streaming service on the end user’s device at that user’s request,” the court said, “without the user being technically able to use it outside that service and while ensuring that the copyright holder retains control over that work and may, where appropriate, block access to that copy, does not fall within the private copying exception provided for in that provision.”

That finding turns on how these downloads actually work. When a user taps “download” on platforms like Netflix or Spotify, the service creates an encrypted file, locks it inside the app and keeps control over it. The file cannot be moved, shared or accessed outside the service, and it disappears when the subscription ends.

“The source of the copy is held by the streaming service provider, and not by the individual concerned,” the court explained.

That setup puts the activity outside the logic of private copying. Across much of Europe, countries allow people to make their own copies for personal use, and in exchange, device makers help compensate creators through levies built into products like laptops and hard drives. The system assumes the copy belongs to the user.

Here, it does not. Because the platform controls the copy from start to finish, the court treated the download as part of the streaming service itself, not a separate act of copying by the user. “As long as the holder maintains such control … no harm can be claimed,” the judges said, shutting the door on applying private copying levies and leaving companies like HP and Dell off the hook.

Séverine Dusollier, a professor of law at Sciences Po specializing in copyright, said the ruling reflects a shift away from focusing on the technical act of copying and toward the economic structure behind it.

“The court does not attach too much weight to the technical fact of the copy but looks at the economy of offline copies and how its benefit/control is distributed between the different actors,” she said.

That approach, she added, cuts straight into how money flows in the system. Where streaming platforms already license content and pay for it, layering a private copying levy on top would be “redundant and unjustified,” effectively turning the same use into a double charge.

Dusollier also pointed to what the ruling means for users. “This decision does not empower in any way the user and even rejects that private copy could be a right of the user,” she said. In practical terms, that means private copying is not a built-in user right, but a narrow carveout for genuinely personal copying.

Industry groups, meanwhile, are taking a more cautious approach. SONT, the Dutch body involved in setting levy tariffs, said “it would therefore be premature for us to comment substantively on the consequences of the ruling,” as it is still reviewing the judgment internally. Stichting de Thuiskopie, one of the Dutch organizations involved in the case, said it is still reviewing the ruling and had no comment for now.

HP Nederland, Dell and a Dutch industry group representing storage media interests did not respond to requests for comment.

The case now returns to the Dutch Supreme Court, which asked for the EU court’s guidance. That court must apply the ruling to resolve the dispute over whether levies are owed. The interpretation from Luxembourg is final, leaving little room for a different outcome.

Courthouse News reporter Eunseo Hong is based in the Netherlands.