Media rights are often complex and divided across various regions worldwide. Whether it’s sports broadcasts, popular reality shows, the latest blockbuster, or a literary work, these rights are typically granted based on geographic location. Geo-blocking is a key strategy that enables rights-holders to enhance their commercial value by restricting digital rights to specific areas. However, many users often opt for virtual private networks (VPNs) to bypass these geographic limitations.
A recent hearing related to Anne Frank’s diaries reveals that websites using sophisticated geo-blocking methods to comply with territorial licensing can rely on this approach. As long as the platform does not encourage users to circumvent these measures, it will not be liable for infringement if individuals employ VPNs to access content from places where the site lacks distribution rights.
The use of VPNs is widespread, and although some services employ various blocking tools against them, the success of these measures can vary. VPN providers generally adapt quickly. For instance, LaLiga in Spain recently obtained a court order requiring two VPNs to prevent streams of LaLiga matches that are unauthorized for viewing in Spain (see Information Note | LALIGA). Similar ‘dynamic’ blocking requests are often made in the UK against internet service providers (ISPs) for illegal sites, though these requests are less common for VPNs. Nevertheless, following the recent ruling concerning ‘Anne Frank,’ it seems that directly tackling the VPN issue is becoming a priority in the EU.
A Thorough Evaluation
In the case of Anne Frank Fonds v Anne Frank Stichting and others (Case C‑788/24), Advocate General Rantos assessed whether Article 3(1) of the Copyright Directive (2001/29/EC) indicates that publishing a work online counts as ‘communication to the public’ in a specific country only if it targets that country’s audience. The role of geo-blocking was also considered.
This case revolves around Anne Frank’s diary. Anne Frank Fonds (the plaintiff) holds copyright on several versions of the diary, which is protected in the Netherlands until 2037. In contrast, copyright has expired in various other countries, placing the diaries in the ‘public domain’ in places like Belgium since 2016.
The issue arose when the Anne Frank Stichting and other defendants published a scholarly edition of the diary text on the website annefrankmanuscripten.org in Dutch, which included versions that remain under copyright in the Netherlands.
The defendants established a geo-blocking mechanism to limit access to the website to users in countries where the content is in the public domain and set up an alert system prompting users to verify their location when accessing the site from those territories (i.e., to ensure no VPN was in use). The plaintiff argued that the defendants violated their copyright because protected content was still reachable online in the Netherlands via a VPN.
The Supreme Court of the Netherlands referred the matter to the ECJ, and Advocate General Rantos has offered his opinion. Although not legally binding on the ECJ, it typically aligns with the Advocate General’s views.
Insights from the Advocate General
Advocate General Rantos expressed:
Article 3(1) of the Copyright Directive does not require that a website’s content be ‘aimed at’ the public in a specific country for it to be regarded as ‘communication to the public’ there.
However, merely publishing content online does not automatically mean there is ‘communication to the public’ in a country where that content is still protected, as long as the site utilizes effective geo-blocking and other measures designed to restrict access. The success of these measures should be assessed based on all relevant factors, including how easily users from blocked areas can bypass them using a VPN.
If there remains ‘communication to the public’ in the restricted region, VPN providers should not be held responsible for enabling their users to bypass these barriers unless the provider has actively promoted illegal access to copyrighted works.
The Advocate General pointed out that just because users can get around geo-blocking doesn’t mean that the website operator has communicated the work to the public in that blocked area. If this were the case, managing territorial copyright online would be impractical—effectively turning any online publication into a global one. Therefore, a publisher that employs effective measures (like geo-blocking) to block unauthorized access shouldn’t be seen as communicating to the public in those blocked areas. The situation would change only if the technical measures were intentionally weak or easily bypassed.
While it’s ultimately up to the referring court to determine effectiveness, the Advocate General provided valuable insights, stating that ‘state of the art’ geo-blocking (like what is present here) is a suitable means to protect the copyright of the applicant. Nevertheless, as no technology is fail-proof, website owners must regularly reassess new circumvention strategies and take further action as needed. The ease of use of circumvention methods plays a significant role. A defendant shouldn’t be responsible for the unlawful actions of others if they have genuinely taken effective protective measures.
Additional methods to deter access, such as the confirmation alert used in this case, are also relevant, even if they serve as secondary to the primary technical blocks.
