Earlier this week, The IPKat reported on the Opinion of Advocate General (AG) Rantos in Anne Frank, C-788/24, a referral for a preliminary ruling from the Netherlands focusing primarily on the apparent conflict between a technically borderless medium (the internet), territorial copyrights, and VPNs.
Of particular interest is the response that the AG Opinion provides to the first question referred by the Dutch Supreme Court: is the online publication of a copyright work an act of communication to the public within the meaning of Article 3(1) of the InfoSoc Directive, even if that communication is not ‘targeted’ at a specific Member State?
According to the AG, the answer is yes: “Article 3(1) of the Copyright Directive must be interpreted as meaning that it does not require an act of publication of a work on a website to be addressed to the public in the country concerned in order to be classified as an ‘act of communication to the public’ in that country.” (para 24)
This conclusion is intriguing for several reasons. In this post, I will limit myself to two observations:
- First, the AG appeared to adopt an accessibility approach rather than targeting, which has become instead frequent over the past several years, both in case law and legislation.
- Second, if the Court of Justice of the European Union (CJEU) follows him, such an approach might make copyright enforcement potentially easier, including in relation to AI models trained outside of the EU.
Accessibility, not targeting?
Like Article 5(2) Berne Convention, Article 8(1) of the Rome II Regulation adopts a lex loci protectionis (law of the place where protection is sought) approach. That said, the CJEU has yet fully to say how these rules need to be interpreted in online copyright infringement cases, given that multiple leges (laws) could apply.
While in Nintendo, C-24/16 and C-25/16 (concerning EU design rights) [IPKat here], the Court intended the place of infringement to be the place where the initial upload took place, in multiple other instances a preference has been instead expressed for a targeting approach. That has been case of EU trade marks, the sui generis database right, and the right of distribution under copyright. Insofar as recent EU legislation is concerned, it appears that targeting is employed as a localization criterion having regard to, e.g., Articles 15 and 17 of the DSM Directive and the Digital Services Act.
The above said, in Grand Production, C-423/21 [IPKat here] – a case that was never decided (the referral was eventually withdrawn) but that AG Rantos refers to at length in his Opinion – AG Szpunar indicated that targeting might not be required for the copyright law of a Member State to apply: the fact that a TV broadcast is originally directed at a non-EU country would not mean that the online retransmission thereof does not qualify for the application of EU copyright law (specifically: the copyright law of the concerned Member State), if the protected content is accessible from the EU. Ultimately, AG Szpunar concluded that the operator of a streaming platform like the one at issue in the background proceedings would be liable under Article 3(1) of the InfoSoc Directive if the communication at hand was performed without the rightholder’s consent.
It is thus clear that the conclusion of AG Rantos is not at all surprising given the ‘precedent’ offered by the Opinion of AG Szpunar in Grand Production. Now, it remains to be seen if the CJEU also agrees. Considering the reasoning offered by - not one but - two of its AGs, it can well do. But what would the consequences be in such case?
Easier copyright enforcement?
One immediate implication would be potentially to simplify enforcement, by sparing rightholders from demonstrating targeting of a certain jurisdiction.
As the CJEU inter alia explained in Donner, C-5/11, proof of targeting of the public located in a specific Member State could be obtained by considering factors such as the existence of a certain language website, the content and distribution channels of one’s own advertising materials and its cooperation with delivery service providers providing their services in a certain Member State. Ultimately, what matters is the possibility to establish “a sufficient connecting factor with the Member State in which the court seized of the infringement action is situated”.
While the Court also explained that there is no need for the court seized to examine the substance of the action during this phase (“a reasonable presumption that acts of infringement may have been committed or threatened on the territory of a Member State is sufficient”), the approach proposed by AG Rantos (and, before him, AG Szpunar) would at least in principle spare one from having to demonstrate all of this.
All the main exclusive rights are harmonized at the EU level, so in theory it would not make a difference to sue under the law of a certain Member State instead of another for infringement of, say, the right of communication to the public. Nevertheless, when it comes to IP enforcement, not everything can be deemed realistically to be harmonized. Think of available remedies (an example is pan-European copyright injunctions, which certain national courts routinely grant, while they are unknown in some Member States) and damages. An accessibility criterion would allow rightholders more easily to choose where to litigate.
Of course, the choice would not be limitless as there would be other considerations to undertake as well.
For example, when it comes to jurisdiction, in cases concerning the interpretation of Article 7(2) Brussels I recast – think Pinckney, C-170/12 [IPKat here] and Hejduk, C-441/13 [IPKat here] – the CJEU has also adopted an accessibility criterion (which was harshly criticized by members of the Court themselves, including AG Cruz Villalón in his Opinion in Hejduk). That said, even with that criterion, the CJEU identified some limitations: suing in the Member State where the infringing content is accessible as the ‘place where the damage is felt’ as opposed to the Member State where the defendant is domiciled/established or where the activation process resulting in the infringing act was performed – would limit damage entitlement to the damages suffered on that territory only. In some cases, this might be enough to reduce the attractiveness of such a forum.
The case of AI models
If the CJEU embraces the approach recommended by AG Rantos (and AG Szpunar), there will be other important consequences.
While some consider this provision an attempt at an an extraterritorial application of EU law, such a reading is incorrect, as I discuss in detail here.
Article 53(1)(c) of the AI Act among other things implies that it is irrelevant where the acts of extraction and reproduction at the basis of the text and data mining (TDM) processes implied in training take place and whether such acts are to be deemed lawful under the laws of those jurisdictions. If the resulting model is made available in the EU, all the copyright-relevant steps leading to such a situation (thus going well beyond TDM) must comply with EU law – including output generation.
In turn, and among other things, if an AI model allowed one to generate content that ‘regurgitates’ training data – whether verbatim or in altered (yet still recognizable) form – it would not matter where the training has been done or where, e.g., the servers of the AI model developer are located.
The approach proposed by AG Rantos would allow rightholders to sue wherever that content is accessible having regard to the determination of (1) what relevant restricted acts (if any) have been undertaken (proof of derivation will obviously need to be provided unless a presumption to the contrary applies) and (2) who has performed them (the AI developer? the user of the model? both? See again here).
Let’s now wait to see what the CJEU says. As noted, in the end Grand Production was withdrawn. It’s highly unlikely that the same fate will occur to Anne Frank. The Court now has an opportunity to provide long-awaited clarity on a crucial issue of enforcement of copyright and other unregistered IP rights. The implications will clearly extend beyond VPN use and works that are still protected in some jurisdictions but not others.
[Originally published on The IPKat on 1 February 2026]