The Court of Justice of the European Union (CJEU) has ruled in Anne Frank Fonds v Anne Frank Stichting (C-788/24) that a work may be made available online free of charge in Member States where it has entered the public domain, even if copyright protection continues in other Member States. However, publishers must implement effective geo-blocking measures to prevent access from territories where copyright still subsists.
Background
The case concerns Anne Frank’s manuscripts and diaries. Under the applicable copyright rules, the works remain protected in some Member States, including the Netherlands, until 2037. In other Member States, including Belgium, copyright protection has expired and the works have entered the public domain. In 2021, the Anne Frank Foundation and other organisations published a scholarly edition of Anne Frank’s manuscripts online free of charge. To address the differing copyright positions across Europe, the website used a geo-blocking system designed to prevent access from countries where the works remained protected.
The Anne Frank Fund nevertheless challenged the publication, arguing that Dutch internet users could bypass the geo-blocking using VPNs and similar tools. The Dutch Supreme Court referred questions to the CJEU concerning whether the online publication amounted to a “communication to the public” under Article 3 of the Information Society Directive (2001/29/EC).
The CJEU’s ruling
The Court held that a work which is in the public domain in some Member States may lawfully be published online and made available free of charge, provided that access is restricted in Member States where copyright protection still exists. The Court found that:
- the operator of a website must implement an effective technological measure to restrict access from Member States where the work remains protected;
- a state-of-the-art geo-blocking system can qualify as an effective measure, even if determined users can circumvent it through VPNs or similar technologies;
- the mere possibility of circumvention does not render the geo-blocking ineffective; and
- if geo-blocking is ineffective and there is an unlawful communication to the public, responsibility lies with the publisher that made the work available online, rather than with VPN providers.
