State-of-the-Art Geo-Blocking is Good Enough, Even if VPNs Enable Circumvention: The CJEU on Territorial Copyright and the Public Domain in Anne Frank Fonds

Territorial copyright and the borderless Internet have never sat comfortably together. The CJEU’s judgment in Anne Frank Fonds (C-788/24), delivered on 9 July, demonstrates that this tension remains very much alive. Faced with works that have entered the public domain in some Member States but remain protected in others, the Court concludes that geo-blocking retains legal significance for copyright law purposes despite the possibility of VPN circumvention, provided that it qualifies as an “effective technological measure” within the meaning of Article 6(3) of the InfoSoc Directive – that is, a technological measure intended to prevent or limit acts not authorised by the copyright holder (paras. 44-56).

The dispute arose between the Anne Frank Fonds, which administers Anne Frank’s copyright, and the publishers of a scholarly digital edition of her original Dutch-language manuscripts made available on a Belgian website. While the manuscripts have entered the public domain in several Member States, including Belgium, they remain protected by copyright in the Netherlands until 2037. The reason lies in the transitional arrangements adopted when the EU harmonised copyright terms. The Netherlands thereby preserved existing terms of protection under its previous copyright regime in respect of posthumously published works. As parts of Anne Frank’s manuscripts were first published only in the 1986 critical edition, they continue to benefit from that grandfathered protection in the Netherlands.

To accommodate that territorial divergence, the publishers employed state-of-the-art geo-blocking to prevent access from the Netherlands while making the edition freely available elsewhere. The Anne Frank Fonds nevertheless argued that Dutch users – the work’s natural linguistic audience – could still access the website through VPN services and that the publication therefore amounted to an unauthorised communication to the public in the Netherlands.

The case thus exposed the tension between the territorial nature of copyright and the borderless architecture of the Internet. Against that background, the Dutch Supreme Court referred three closely related questions to the Court of Justice: (1) whether a communication to the public under Article 3(1) InfoSoc depends on the publication being targeted at the public of the Member State concerned; (2) whether state-of-the-art geo-blocking remains legally effective despite the possibility of VPN circumvention; (3) and, if not, whether any resulting communication to the public should be attributed to the website operator or to the provider of the VPN or similar circumvention service.

The Court answers those questions in a manner that treats effective geo-blocking as a legally relevant indicator of the Member States targeted by an online communication. Although the Court reaches the same outcome as AG Rantos, whose Opinion I discussed on this blog earlier this year, the judgment goes further by clarifying the relationship between Articles 3 and 6 of the InfoSoc Directive and placing greater emphasis on the role of the public domain in the balancing exercise underpinning EU copyright law.

Effectiveness, Not Perfection

The Court’s central message is that Article 3 does not require technological perfection. As I argued in my earlier commentary on the AG’s Opinion, the real issue was never whether geo-blocking can be circumvented, but whether EU copyright law should require those wishing to make works lawfully available online to eliminate every possibility of circumvention. It does not. The Court holds that the effectiveness of geo-blocking depends on proportionality, technological feasibility and available alternatives rather than absolute impermeability (para. 46). Accordingly, the mere possibility of VPN circumvention does not render geo-blocking ineffective (paras. 51-55).

While the outcome broadly confirms AG Rantos’ Opinion, the judgment’s more significant contribution lies in its reasoning. Building on VG Bild-Kunst, the Court holds that users excluded by geo-blocking (which is qualified as an effective technological measure) do not form part of the public reached by the communication (paras. 37-43, 55). In doing so, it draws Articles 3 and 6 into closer interaction, making the existence of an effective technological measure relevant to determining the relevant public under Article 3.

Article 6 Instead of Targeting

One noteworthy aspect of the judgment is how it deals with the Dutch Supreme Court’s first question. Rather than deciding whether Article 3(1) requires a publication to be targeted at the public of the Member State concerned, the Court reframes the inquiry. The decisive question becomes whether users in that Member State form part of the public reached by the communication in light of the technological measures employed.

In doing so, the Court also resolves a debate that emerged after the AG’s Opinion. Some commentators argued that Article 3(1) should incorporate a territorial “targeting” criterion, following approaches developed in trade mark law, the sui generis database right and the copyright distribution right. The Court does not take that route. Instead, whether users belong to the relevant public depends not on whether the publication targets their territory, but on whether effective technological measures exclude them from the communication (paras. 37-55).

Whether the Court’s solution will prove preferable in every context remains to be seen. Its principal advantage, however, is that it offers national courts a more concrete and administrable framework than the inherently open-ended inquiry into whether an online publication is directed at a particular national public.

The Public Domain as Part of the Balance

The judgment is equally noteworthy for the place it assigns to the public domain within the balancing exercise underpinning the InfoSoc Directive.

The Court expressly warns that treating every possibility of VPN circumvention as sufficient to establish a communication to the public would confer copyright with an “excessive territorial scope”, preventing works from being made freely available even in Member States where they have entered the public domain (para. 52). That observation goes beyond the immediate facts of the case. It recognises that territorial copyright operates in both directions: while right holders remain entitled to enforce copyright where protection subsists, they cannot rely on that protection to restrict lawful dissemination in Member States where the work has entered the public domain.

If the mere existence of VPNs were enough to extend the territorial reach of Article 3, publishers would face strong incentives either to adopt increasingly restrictive access systems or simply to refrain from making public-domain works available online. In practice, then, the longest national copyright term could become the effective standard across the Union despite the territorial nature of copyright itself. The Court’s insistence that geo-blocking need only be effective – not infallible – avoids precisely that outcome (paras. 46, 52-53).

This concern is woven into the Court’s broader balancing exercise. Referring to Articles 11 and 17 of the Charter, it reiterates that copyright protection must be reconciled with freedom of expression and information (para. 26). In the specific context of the residual fragmentation of copyright terms resulting from transitional arrangements adopted when the EU harmonised copyright duration, that balance requires preserving not only the legitimate interests of copyright holders, but also the public’s interest in accessing works that are no longer protected in a particular Member State (paras. 46, 50, 52).

Although this concern was already discernible in AG Rantos’ Opinion, the judgment brings it much more clearly to the fore. The public domain is no longer merely the factual consequence of copyright expiration. It becomes an express consideration informing the interpretation of Article 3 itself. In that respect, Anne Frank Fonds fits comfortably within the CJEU’s case law emphasising that the limits of copyright are an integral part of the balance struck by EU copyright law, rather than mere derogations from exclusive rights (Funke Medien, para. 70; Spiegel Online, para. 54; and Pelham II, para. 48).

What Counts as an “Effective” Technological Measure?

The judgment also provides useful guidance on what qualifies as an effective technological measure under Article 6(3). Like the AG, the Court refers to geo-blocking that is “state of the art”, while leaving it to the national court to determine whether the measures employed satisfy that standard (paras. 47-49, 55). Crucially, however, effectiveness does not require invulnerability. Drawing on Nintendo, the Court reiterates that proportionality governs the assessment, taking into account available technology, implementation costs, practical feasibility and less restrictive alternatives offering comparable protection (para. 46).

The Court nevertheless rejects the suggestion that publishers should be required to adopt more restrictive systems simply because they are harder to circumvent. Although such measures may exist, requiring their use would upset the fair balance between copyright protection and free access to works in the public domain (paras. 50, 53). The judgment does not, however, seek to determine whether every conceivable additional technical measure would necessarily upset that balance. This is consistent with the approach commonly adopted by European supranational courts in fundamental rights adjudication, which is to define the legal parameters of the balancing exercise rather than exhaustively assess the proportionality of every existing or future technological variation.

Finally, the Court distinguishes geo-blocking from the website’s requirement that users declare they were accessing it from a Member State where the manuscripts had entered the public domain. Unlike geo-blocking, such a declaration depends on users’ honesty rather than technology capable of preventing or limiting unauthorised access and therefore does not qualify as an effective technological measure under Article 6(3) (para. 54). The judgment thus makes clear that legal warnings or user declarations may supplement technological measures, but they cannot replace them.

VPN Providers

The Court’s answer to the third question is comparatively straightforward.

If geo-blocking is ultimately found not to constitute an effective technological measure, any communication to the public remains attributable to the operator of the website rather than to providers of VPN services (para. 64). VPN providers merely supply general Internet infrastructure; they do not themselves make protected works available to users. Drawing on YouTube and Cyando and Ocilion IPTV, the Court concludes that they do not play the indispensable role required for liability under Article 3(1) (paras. 61-64).

Conclusion

The Internet may be borderless, but copyright in the EU is not. Anne Frank Fonds accepts that reality and provides a workable way of accommodating it. The Court’s solution preserves territorial copyright without allowing it to undermine the public domain elsewhere – a balance that is likely to become increasingly important as online dissemination continues to outpace the territorial structure of copyright law.

Photo by Kelly Sikkema on Unsplash