Effective geo-blocking is a bar to communication to the public in blocked territories, says AG Rantos

Advocate General (AG) Rantos has opined that websites using effective geo-blocking to restrict access to copyright-protected works in certain countries do not communicate those works to the public in those countries. 

This will be seen as a welcome clarification for those looking to publish content online in a copyright-compliant manner, should the Court of Justice of the European Union (CJEU) follow suit.

Background 
The Anne Frank Fonds (Fund) owns the copyright in certain parts of Anne Frank’s diary (Diary) in the Netherlands. That copyright lasts until 2037. However, the Diary has already entered the public domain in several countries, including Belgium (PD Countries), following the expiry of copyright protection in those countries in 2016.

In 2021, Anne Frank Stichting (Foundation) published a new edition of the Diary online, with access geo-blocked to restrict availability to the PD Countries. Any users who tried to access the Diary in the Netherlands were presented with an access denied message, and other users were required to confirm they were in a PD Country.

The Fund brought a copyright infringement action, arguing that individuals could still access the Diary in the Netherlands using a virtual private network (VPN). The claim was initially dismissed by the Dutch courts in 2022 but, during the appeal process, the Netherlands Supreme Court referred the following three questions to the CJEU:

1. Does online publication of a work have to be targeted at a particular country in order for that publication to amount to a communication to the public in that country under Article 3(1) of the InfoSoc Directive (Directive 2001/29/EC)?
2. Can there be a communication to the public in a particular country if, by means of (state-of-the-art) geo-blocking, it is ensured that the website on which the work is published can only be accessed by the public in that country by circumventing the blocking measure using a VPN or similar service?
3. If question 2 is answered in the affirmative, is that communication made by the party who published the work online or by the provider of the VPN service?

AG Rantos’ response

AG Rantos’ opinion is short and concise. On the first question, he opined that an online publication does not need to be addressed to the public in a specific country in order to constitute a communication to the public there. All that is required is that there is an “act of communication” of a work and that that act of communication is to a public (as each of those criteria have been previously interpreted by the CJEU). 

That said, he went on to find that where content is published on a website which is subject to effective, state-of-the-art geo-blocking measures, there will be no communication to the public in those blocked territories. 

Geo-blocking is currently the only way to restrict access to online content on a territorial basis and, whilst AG Rantos acknowledged that no security measures are perfect, he appeared keen to adopt an interpretation that will enable publishers to continue to manage copyright on a territorial basis online. 

At the same time, AG Rantos made it clear that there are limits to this – noting, in particular, that the position would be different if the technical measures adopted were “deliberately ineffective so that they could be easily circumvented”. He also suggested that those publishing content in this way should be obliged to regularly assess the risks of circumvention and adopt new means to avoid it where necessary.

Given the above, AG Rantos did not need to answer the third question. However, he noted that if the possibility of circumventing geo-blocking measures did amount to a communication to the public, a VPN service provider could not be held liable for the acts of those who use its services to circumvent geo-blocking restrictions. In that scenario, the VPN service provider would simply be acting as an intermediary, unless they actively encourage such unlawful use.

Comment

The dispute in this case provides yet another example of the conflict between the territoriality of copyright and the global nature of the internet.

As expected, AG Rantos’ opinion suggests that using geo-blocking measures will generally be seen as an effective way of managing this conflict – echoing an earlier opinion of AG Szpunar in the Grand Production case (which was ultimately withdrawn before the CJEU had an opportunity to address it). Ultimately, it will be for the Netherlands Supreme Court to determine the effectiveness of the geo-blocking measures put in place by the Foundation in the case before it, but AG Rantos’ opinion does provide some helpful indications on this front.

Perhaps more interesting, however, is AG Rantos’ finding that targeting a particular country is not required in order for there to be a communication to the public in that country, distinguishing this from the CJEU’s approach to the infringement of other IP rights online, such as trade marks.

We wait with interest to see whether the CJEU will follow AG Rantos’ lead and, in particular, whether it endorses this comparatively low bar for communication to the public in a particular country. If it does, there could be widespread ramifications for copyright enforcement, including potentially making it easier to bring actions against providers of generative AI systems that are accessed from across borders.