A work that has entered the public domain in one Member State may be made available online free of charge, even if it remains protected by copyright in another Member State, provided that the website effectively blocks access for internet users located in the latter State, according to a ruling delivered on Thursday 9 July by the Court of Justice of the European Union (CJEU) in a judgment concerning Anne Frank’s manuscripts.
The case pits the Anne Frank Fonds, holder of the copyrights in the author’s works, against the Anne Frank Stichting, which in 2021 published a scholarly edition of Anne Frank’s manuscripts on a Dutch-language website, accessible free of charge.
It had nevertheless prevented them from being consulted from States where the works remain protected thanks to a geo-blocking system.
The Supreme Court of the Netherlands had asked the CJEU about the consequences of users circumventing that blocking by using a virtual private network (VPN).
In its judgment, the Court recalls that the concept of “communication to the public” requires two cumulative elements, namely an act of communication of a work and its communication to a public. According to the Court, where a work has entered the public domain in certain Member States but remains protected in others, the person who makes it available online free of charge must limit access to it solely to internet users located in the States where that protection has expired.
Moreover, the Court rules that state-of-the-art geo-blocking constitutes an effective technological measure, even if it can be circumvented by means of a VPN or a comparable service.
It further considers that making a work available online free of charge does not constitute “communication to the public” in Member States where it is still protected when effective geo-blocking blocks access to it.
Conversely, if the geo-blocking is not sufficiently effective, liability for communication to the public lies with the person who put the work online, and not with the provider of the VPN used to circumvent that restriction.
The Court considers that the use of a VPN by certain internet users does not, in itself, call into question the effective nature of a geo-blocking measure.
It will now be for the Dutch court to settle the dispute in accordance with the interpretation given by the Court.
Read the judgment: https://aeur.eu/f/mt7 (Original version in French by Nithya Paquiry)