CJEU confirms no communication to the public where effective geo-blocking used

The CJEU has confirmed, in Anne Frank Fonds (Case C-788/24), that there will be no communication to the public, for copyright purposes, where effective website geo-blocking is used to restrict access to copyright works in those countries where the works are protected. This is so even if users can circumvent the geo-blocking measures using a virtual private network (VPN) or similar service.

Background 

Anne Frank Fonds (the Fund) owns the copyright in certain parts of Anne Frank’s diary in the Netherlands. That copyright lasts until 2037. The diary is, however, already in the public domain in several other EU member states, including Belgium (PD Countries), with copyright having expired in those countries in 2016.

In 2021, the defendants published a new, scholarly edition of the Diary online, with access geo-blocked to restrict availability to the PD Countries. Any user who tried to access the Diary in the Netherlands was presented with an access denied message, and users accessing the website from elsewhere were required to confirm they were in a PD Country.

In spite of this, the Fund brought a copyright infringement action against the defendants before the Dutch courts, arguing that individuals could still access the Diary in the Netherlands using a VPN. The claim was initially dismissed by the Dutch courts but the case progressed all the way up to the Netherlands Supreme Court which referred three questions to the CJEU. These can be summarised as follows:

1. Does online publication of a work have to be targeted at a particular country in order for there to be a communication to the public in that country under Article 3(1) of the InfoSoc Directive (Directive 2001/29/EC)? If so, what factors must be considered in that assessment?
    
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?

AG Rantos’ Opinion

As we reported back in February (see our blog), AG Rantos’ opinion was 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 in that country. 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.

He then 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.

That being the case, he 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.

CJEU decision

While the thrust of the CJEU’s decision aligns with AG Rantos’ Opinion, the court reformulated the first two questions in such a way that it didn’t, in fact, expressly address the first question about whether targeting a particular country is required in order for there to be a communication to the public in that country.

Instead, it focussed on answering the combined question, “whether Article 3(1) of [the InfoSoc Directive] must be interpreted as meaning that a work which is in the public domain in certain Member States, but is still protected by copyright in another Member State, and which is published free of charge on a website that incorporates a geo-blocking measure designed to ensure that access to that site is blocked for internet users visiting it from that other Member State, is the subject of a ‘communication to the public’ in that Member State, within the meaning of that provision, when those internet users can circumvent that geo-blocking measure using a VPN or similar service.”

The court’s answer to that question was no, provided that the geo-blocking measure in question is “effective”. In the context of this case, that meant that the geo-blocking measure must be “state-of-the-art” and suitable for achieving the objective of preventing access in those countries where the Diary is still protected by copyright. The fact that a geo-blocking measure can be circumvented (for example, via a VPN) is not decisive in this respect, nor is the fact that other technological measures may take greater account of the copyright holder’s interest (there being a need to balance the copyright holder’s interests with those of the public in enjoying access to the works in PD Countries). 

The court made clear, however, that simply asking the user to confirm that they’re accessing the site from a country in which the work is not protected by copyright will not be sufficient.

Turning to the third question, and given the court’s finding that whether there is a communication to the public in this context depends on the effectiveness of the geo-blocking measures that have been put in place, the court answered this from the perspective of cases where the measures used are ineffective rather than where the measures used can be circumvented. In those circumstances, the court found that the communication would be made by the person who published the work.

Comment

This decision will be welcomed by those looking to publish content online in a copyright-compliant manner. Had the court found otherwise, it would have made it very difficult to share works online without infringing copyright, where copyright has expired in some countries but not others, given no geo-blocking measures will be 100% effective. 

It’s important to note, however, that the judgment goes beyond finding that there will be no communication to the public where effective website geo-blocking is used. Indeed, the CJEU has seemingly imposed an obligation on online publishers who know (or ought reasonably to know) that a work is protected in some EU member states but not others “to adopt effective technological measures to restrict access to the website solely to those internet users [based in PD Countries], failing which, given the freely accessible nature of websites, that person would be giving access to the work concerned to all internet users and would thus be infringing that right”.

Perhaps unfortunately, due to the way the court reframed the questions before it, the CJEU didn’t directly answer the first question that had been referred about  whether targeting a particular country is required in order for there to be a communication to the public in that country. AG Rantos had earlier opined that such targeting is not required (see our blog), but the CJEU did not explicitly confirm or deny that view. One could, however, read the decision (including the sentence quoted above) as implicitly agreeing with AG Rantos that targeting is not required in order for there to be a communication to the public in the EU. If that approach is adopted going forwards, it could lead to divergence with the UK on this point, with the English courts having noted on a number of occasions (including in the High Court’s recent decision in the Peppa Pig and Wolfoo dispute that was handed down on 25 June) that targeting is required in the UK.