VPNs, Copyright Territoriality, and Why Borders Still Matter Online: AG Rantos’ Opinion in Anne Frank Fonds (C-788/24)

Anyone working with online copyright in the EU is familiar with the underlying tension: copyright remains territorially structured, while online access routinely crosses borders. That mismatch has returned to the Court of Justice at regular intervals, each time in a slightly different guise – from questions of jurisdiction (Hejduk), to territorial licensing (Football Association Premier League), and now to geo-blocking and VPNs.

The Opinion delivered by AG Rantos on 15 January 2026 in Anne Frank Fonds (C-788/24) is the latest chapter in that line of cases. The reference to the Court concerns, in essence, the following question: if a website blocks access from a Member State where copyright still applies, but users can get around that block with a VPN, does that still count as a “communication to the public” in the blocked State?

Behind that technical question, however, lies a more fundamental concern: whether territorial copyright can still operate meaningfully in an online environment at all. AG Rantos’ answer is pragmatic. Geo-blocking does not need to be flawless to be legally relevant. What matters is whether access is genuinely restricted – not whether the most determined users can get around it.

Copyright at Different Speeds

The underlying conflict reflects a broader reality of EU copyright law: harmonisation has not eliminated territorial divergence. Anne Frank’s diaries are already in the public domain in Belgium and elsewhere, but remain protected in the Netherlands until 2037. To reflect that split, a Belgian academic publisher made its online edition freely accessible only in countries where protection had expired, using geo-blocking and additional access checks to exclude Dutch users.

The Anne Frank Fonds, who holds copyright in Anne Frank diaries, argued that this approach failed, since VPN access made the content reachable from the Netherlands, allegedly triggering a communication to the public under Article 3(1)InfoSoc. Dutch courts rejected that reasoning, emphasising reasonable efforts to impede access to the website from the Netherlands. The Dutch Supreme Court nonetheless sought guidance from the Court of Justice, asking whether a communication to the public presupposes that the online publication is addressed or targeted at a national public; whether the mere possibility of accessing a geo-blocked website via VPN nevertheless results in a communication to the public in the blocked Member State; and, if so, whether such a communication must be attributed to the website operator or instead to the provider of the VPN or similar circumvention service.

No Targeting Required – But Borders Still Matter

One point is settled at the outset: communication to the public under Article 3(1) does not depend on whether content is “targeted” at a national audience (para. 24). Unlike trade mark law (L’Oréal v. eBay, paras 64-65), private international law (Pammer and Hotel Alpenhof, paras 75-83), database rights (Football Dataco, para. 47), or even copyright law’s own distribution right (Donner, paras 27-30; Dimensione Direct Sales v. Knoll, paras 30-33), copyright’s right of communication does not ask whom the publisher intended to reach.

But rejecting targeting does not mean abandoning territorial limits. Nor does it turn technical reachability into the decisive criterion for communication to the public. If it did, territorial copyright would quickly become unworkable online: any lawful online availability in one State would immediately generate liability elsewhere (provided that the work is still protected there), simply because users can route around geo-blocking (paras 31-32).

This is where AG Rantos draws the line. Once targeting is set aside, effectiveness becomes the relevant factor (para. 33). Where access to a work is effectively prevented in a Member State where copyright still subsists, the residual possibility of VPN circumvention does not amount to a communication to the public, unless the measures are knowingly ineffective or merely symbolic (paras 30-33).

Effectiveness, Not Perfection, Sets the Standard

This way of thinking closely tracks academic analysis. As Bernt Hugenholtz has observed, once EU copyright law dispenses with any conceptual “targeting” requirement – as the Court already implicitly did in Hejduk – territorial relevance online cannot be grounded in audience intent, but must instead rest on effective access control. Precisely because Article 3(1) does not differentiate communications by their intended public, territorial copyright can remain practically operable only if geo-blocking functions as a genuine barrier rather than a merely formal one.

From a licensing perspective, Stef van Gompel has made a similar point. Treating VPN circumvention as legally decisive would hollow out territorial exploitation altogether, leaving lawful online dissemination in public-domain States exposed to spill-over effects from more restrictive regimes.

The Opinion adopts that restrained logic. Geo-blocking is never flawless, and EU copyright law does not require it to be. The focus is instead on whether publishers rely on up-to-date tools (and “state-of-the-art” geo-blocking, such as that adopted in the Anne Frank Fonds case, is described as the only currently available mechanism capable of restricting access to a website on a territorial basis) (para. 36). At the same time, publishers are asked to regularly assess new circumvention risks and, if necessary, adopt additional measures to prevent such circumvention as circumstances (and technology) evolve (para. 36). They are not, however, required to do the impossible and achieve total technical lock-down (para. 36). Nor are publishers expected to give up open online access in favour of excessively restrictive systems (para. 41). The AG makes this balancing exercise explicit. Closed platforms, subscriber-only access or terminal-style consultation may be disproportionate where they significantly limit access in countries in which copyright has already expired (para. 41).

Finally, users’ willingness to circumvent is irrelevant; what matters is how easily circumvention is enabled (para. 37), and even non-technical deterrents may also contribute to overall effectiveness (para. 38).

VPNs: Access Tools, Not Publishers

AG also briefly turns to the role of VPN services. In his view, simply offering VPN infrastructure does not amount to communicating protected works to the public. VPNs provide a means of connecting to the internet; they do not themselves make content available (para. 46). Crucially, he stresses that VPN services are widely used for lawful and socially valuable purposes, including privacy protection, data security, business communications and access to corporate networks (para. 46). Against that background, treating VPN providers as communicators under Article 3 would stretch copyright liability too far and risk drawing ordinary access technologies into copyright enforcement.

Liability would arise only where a provider actively promotes or encourages infringing use of its services (paras 46 and 48). This position fits neatly with the Court’s earlier case law on access-enabling technologies. In Filmspeler, for instance, the Court of Justice extended the concept of communication to the public to the sale of a media player only because the device was deliberately configured to give access to unauthorised content, with full knowledge of its infringing nature. AG Rantos’ reasoning thus draws an implicit but important line between deliberate facilitation of infringement and the provision of ordinary access infrastructure.

More generally, AG Rantos’ Opinion suggests implicitly that accessing content via a VPN, by itself, does not infringe the right of communication to the public. Copyright law may still come into play in other ways – most obviously where users download or store protected works (thereby infringing the right of reproduction) – but circumvention as such is better addressed through the rules on technological protection measures under Article 6 InfoSoc, rather than by expanding the scope of Article 3 (paras 29 and 33).

The Bigger Picture: Why Copyright Is Still Not Unitary

Seen through an internal-market lens, AG Rantos’ Opinion reflects a careful understanding of what market integration can realistically achieve under the current legal architecture. The EU internal market does not eliminate regulatory diversity; it prevents disproportionate cross-border effects that would undermine the free movement of goods and services. The Opinion allows lawful availability where protection has expired while avoiding a spill-over whereby the most restrictive national regimes shape access across the Union.

This is where scholarship on the quest for a unitary copyright title resonates with the Opinion’s restraint. As Mireille van Eechoud has recently observed, even three decades of copyright harmonisation have not erased territoriality – nor is there political momentum for a fully unitary title. The existing framework remains a mosaic of territorially distinct rights, and most legislative tools (including attempts to extend the Geo-Blocking Regulation) have had limited impact precisely because licensing and business practices are grounded in national rights structures.

Van Eechoud’s broader point – that territorial rights persist not because of doctrinal inertia but because they are embedded in industry practice, historical norms, and incremental policymaking – reinforces a lesson implicit in the Opinion: adjudication alone cannot produce a unitary copyright. Real unification would require deliberate legislative action under Article 118 TFEU or a political consensus that goes well beyond incremental adjustments to existing directives.

A Quietly Realistic Outcome

AG Rantos’ Opinion accepts the structural constraints of the existing architecture and works within them. Territorial copyright remains territorially meaningful online, without demanding technological perfection or sacrificing lawful public-domain access.

If the Court follows this approach, the result will not be dramatic, but it will be workable. Article 3 InfoSoc will remain focused on genuine acts of making available; geo-blocking will retain legal relevance despite its imperfections; and both the public domain and the internal market will be protected against disproportionate spill-over effects. The internet may strain borders, but this Opinion suggests that EU copyright law can still live with them – at least until legislators choose to alter the underlying framework.