Background
Anne Frank’s Diary, kept between 1942 and 1944, remains under copyright protection in the Netherlands until 2037, held by the Anne Frank Fund. However, the work entered the public domain in Belgium and other EU Member States. In September 2021, a scholarly digital edition was published on www.annefrankmanuscripten.org, registered in Belgium and owned by a research association, with access restricted by geo-blocking technology designed to prevent access from the Netherlands. Dutch users see a message denying access unless they circumvent the block using a VPN. The Anne Frank Fund sued, arguing this constituted unauthorized communication to the public in the Netherlands, infringing its exclusive rights under Article 3(1) of Directive 2001/29/EC.
The Dutch Supreme Court sought guidance on whether publication with geo-blocking constitutes a communication to the public when users can circumvent the measure, and whether such circumvention affects copyright liability.
The Court’s Holding
The Court held that the concept of “communication to the public” under Directive 2001/29/EC requires examining the publisher’s intent, as expressed through effective technological measures. When a copyright holder uses technology to restrict access to their own work, this demonstrates an intention to limit the circle of recipients. By analogy, a third party publishing a work knowing it is still protected in certain Member States must adopt effective technological measures to restrict access solely to users in jurisdictions where the work is in the public domain.
The Court ruled that geo-blocking qualifies as a “technological measure” under Article 6(3) of Directive 2001/29/EC if it restricts access based on Internet Protocol address. Critically, such a measure must be “effective,” meaning it must genuinely prevent or substantially impede unauthorized access. The effectiveness assessment is not absolute but must be proportional, balancing copyright protection against fundamental rights including freedom of expression. Courts must examine whether the geo-blocking measure is suitable for its objective and whether less restrictive alternatives exist.
The Court did not resolve whether the specific geo-blocking at issue was sufficiently effective, leaving that factual determination to the referring court. However, it established that if effective technological measures are in place and genuinely restrict access to jurisdictions where the work is public domain, a communication to the public has not occurred in the protected jurisdiction, even if users could theoretically circumvent the measure.
Key Takeaways
- Publishers of works available in the public domain in some EU states but still protected in others must adopt effective technological measures to restrict access from protected territories to avoid copyright infringement.
- Geo-blocking can be an effective technological measure, but its effectiveness is assessed proportionally, considering both the measure’s practical ability to prevent access and its impact on freedom of expression and information.
- The mere theoretical possibility that users could circumvent geo-blocking via VPN does not establish that a communication to the public has occurred in a protected jurisdiction if genuine technological barriers exist.
- A publisher’s intent to communicate with a limited circle of recipients can be inferred from the technological measures they implement, applying principles established in prior caselaw regarding copyright holders’ own protective measures.
Why It Matters
This ruling addresses a fundamental tension in copyright law created by the EU’s internal market combined with divergent copyright terms across Member States. As works gradually enter the public domain at different times in different countries, the decision clarifies that cross-border digital publishing is permitted where the publisher implements effective technological barriers. This has profound implications for knowledge dissemination: organizations can now legally publish historically and culturally significant works online for readers in jurisdictions where those works are free, without automatically infringing copyrights where they remain protected—provided the technological safeguards genuinely work.
The decision balances copyright holders’ exclusive rights against the practical realities of internet distribution and fundamental rights to information. It rejects an absolutist approach where copyright holders could claim infringement simply because circumvention is theoretically possible. Instead, it establishes a workable standard: effective technological measures reflecting a genuine intent to limit access are sufficient to respect copyright boundaries within the EU’s fragmented copyright landscape. This principle will likely apply to many twentieth-century works transitioning to public domain status in progressive waves across different Member States.
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