VPN and copyright?

1. What is a VPN?

A VPN (Virtual Private Network) is a service that provides internet users with both anonymity and privacy while browsing the web. It does this by hiding users’ IP address, which identifies both the device and its location. 

2. What is a VPN used for?

During the pandemic, a growing number of businesses began using VPNs for security purposes when their staff worked remotely. In addition to business VPNs, many people use a VPN for personal reasons. This article focuses on private VPNs, which can be used for multiple reasons. There are legitimate reasons to use private VPNs, including to prevent hackers from accessing a user’s data, stopping ad companies from tracking one’s internet activity and to enable teleworking, but available studies  show that around 50% of VPN users do so to access better entertainment content. In other words, users rely on VPNs to make themselves appear to be in another country, which effectively enables them to bypass geo-blocking to access content that would otherwise be unavailable in their country. 

3. Why is bypassing geo-blocking an issue from a copyright law perspective?

To deliver content to users, content distributors must obtain copyright licences from the underlying copyright owners to stream movies and TV shows. The copyright owners have the right to decide in which countries, how, when, and at what price to make it available to the public.

When a user uses a VPN to access content not available in their country, they technically do not have a licence to stream that content, even though they may be paying a monthly subscription. If no licence exists for a specific country, the idea is that users should not be able to watch the content in that country. 

In essence, this kind of VPN use defeats content restrictions. It is safe to say that geo-blocking has boosted the development of the VPN industry.

4. Is the use of a VPN itself legal?

The short answer is yes, as long as the VPN is not used in a country where VPNs are banned by law, e.g. China, and is not used for illegal activities, e.g. downloading pirated material, hacking, selling materials on the dark web. 

5. …but does circumventing geo-blocking qualify as copyright infringement?

The question, if put in legal terms, is whether accessing content without a proper licence equates to copyright infringement. In short, as long as there is no legislation that specifically and clearly outlaws the bypassing of geographical content restrictions through VPN use to access copyright-protected materials, such use remains legal. However, even if it does not reach the level of illegality, using a VPN can be a violation of the content distributor’s general terms and conditions, which is the case with Netflix. As such, circumventing content blockers might qualify as a contractual breach rather than potential breach of law. 

To assess if there might also be a breach of law, two questions arise: (i) if the VPN user engages in any means of use vested in copyright owners; and (ii) if geo-blocking is considered a ‘technological protection measure’ (TPN), a provision regulated in most copyright laws. These questions should be determined by local laws. If either answer is affirmative, then the act may also qualify as a copyright infringement. However, few local laws are sophisticated and given the lack of court precedents and clear positions, there is legal ambiguity.

6. What the future will bring?

Content distributors have taken the first steps to fight geographical circumvention by introducing VPN-limiting terms and conditions and VPN detection tools. Needless to say, in the digital era nearly all detection tools are quickly overcome by capable tech teams, therefore a different business approach is necessary. In addition, the wide popularity of using VPNs to access better and more extensive entertainment content shows that users are perfectly happy to pay for their content. Also, there is openness from EU legislators to minimise geo-blocking (CRM Directive, Geo-blocking Regulation). Given this, rather than outlawing VPNs or trying to fight them with technological measures, a clear solution could be a shift by content owners and distributors from the practice of territorial copyright licensing (and thus geo-blocking) towards global licences. This would be an important change to the traditional distribution model but could minimise territorial market fragmentation. 

It is likely copyright owners and content distributors will proactively implement measures to resolve this issue in advance of any change in copyright laws, a trend that can already be seen as many content owners have begun prioritising global licences. 

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Beyond accessing restricted entertainment content, the other main motivator for using a VPN is to increase security; CMS will continue its discussion of this topic by focusing on the privacy angle of VPN use. Stay tuned!

 VPN Users Around the World (gwi.com), The State of VPN Usage - Statistics and Trends [Infographic] (go-globe.com), VPN Usage Statistics | Global Trends of VPN Users (geosurf.com)