Recently, the Court of Justice of the European Union (CJEU) ruled on a subject of particular interest for copyright in the digital environment, as it addresses the issue of the territorial delimitation of the right of public communication of a work available on the internet.
Case C-788/24, Anne Frank Fonds v. Anne Frank Stichting and Others, was decided by the European Court on 9 July 2026. The CJEU was referred to it by the Supreme Court of the Netherlands with the following preliminary questions:
-1- Is Article 3 (1) of Directive 2001/29 to be interpreted as meaning that the publication of a work on the internet is only to be regarded as a communication to the public in a particular country if the publication is addressed to the public in that country? If so, what factors must be considered in assessing that?
-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? Is the extent to which the public in the blocked country is willing and able to access the website in question via such a service of relevance in that respect? In answering this question, does it make any difference whether, in addition to the measure of geo-blocking, other measures were taken to impede or discourage public access to the website in the blocked country?
-3- If the possibility of circumventing the blocking measure entails the communication of the work published on the internet to the public in the blocked country within the meaning of Article 3 (1) of Directive 2001/29, is that communication made by the party who published the work on the internet, even though knowledge of that communication requires the intervention of the provider of the VPN or similar service in question?
At the heart of the dispute that led to the formulation of the aforementioned preliminary questions is the situation of a work that has entered the public domain in certain Member States, but continues to benefit from copyright protection in another Member State, as well as the question of whether its publication on a website accessible from other territories constitutes a “communication to the public” in the State in which the work is still protected, when access from that State is prevented by geo-blocking measures.
The national litigation had as its starting point the publication, in 2021, of a digital scholarly edition of Anne Frank’s manuscripts on a website managed by Vereniging for Onderzoek en Untsluiting van Historische Teksten. The website www.annefrankmanuscripten.org was registered in Belgium, where the works in question were in the public domain, but some of them were still protected by copyright in the Netherlands, protection which, according to the legal situation in the proceedings, was to be maintained until 2037. In order to prevent access by users from countries where the works were still protected, the website administrators implemented a geo-blocking system. In the case of access from the Netherlands, the user received a message informing them that the website was not available in their country for copyright reasons. Access could, however, at least theoretically, be circumvented by using a VPN or a similar service. VPN is a technology that redirects the internet connection through an intermediary server and can mask the apparent location of the user.
Anne Frank Fonds, the copyright holder of Anne Frank’s works, considered that the online publication constituted an infringement of its rights in the Netherlands and requested an injunction. Although the national courts initially rejected the request, the Hoge Raad der Nederlanden, the Supreme Court of the Netherlands, decided to stay the case and refer to the Court of Justice of the European Union some preliminary questions on the interpretation of Article 3(1) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.
The fundamental legal question was whether a work published on the internet could be considered to be communicated to the public in a given Member State only when the publication was actually directed at the public in that State. If the answer was in the affirmative, the question arose as to the criteria by which that targeting could be determined. In particular, the national court wished to know whether the existence of a sufficiently effective geo-blocking system excluded, in principle, the public in the State in which the work was protected and whether the technical possibility of circumventing the blocking by means of a VPN had to be taken into account.
The CJEU started from Article 3(1) of Directive 2001/29, which grants authors the exclusive right to authorise or prohibit any communication to the public of their works, including the making available to the public in a manner allowing individual access from a place and at a time individually chosen by each user. This provision must be interpreted in the light of the general objective of the directive, namely to ensure a high level of protection of copyright, while maintaining a balance between the interests of rightholders and those of users. The directive also recognises the importance of technological measures designed to prevent or limit unauthorised uses of works.
The territorial nature of copyright protection, accentuated by the global nature of the Internet, is circumscribed by the main analysis of the European court. The fact that a work is accessible, in principle, online does not automatically mean that it is communicated to the public in all countries of the world. In order to qualify an act as a “communication to the public”, the public to whom the communication is intended must be analysed, and this analysis must take into account the specific circumstances of the publication and, in particular, the technical measures adopted to limit – or delimit – access.
In this context, geo-blocking acquires significant legal importance. It is no longer just a technical tool for content management, but can be a relevant element in determining the territorial scope of communication to the public. It was noted that the site administrators explicitly sought to exclude users located in countries where the works benefited from copyright protection. This intention was reflected not only in the implementation of geo-blocking, but also in the messages displayed to users, explaining that access was restricted for copyright reasons.
In the Court’s view, the mere fact that a person can, by using a VPN or a similar service, circumvent the geo-blocking measure is not, in itself, sufficient to transform the publication into a communication to the public in the blocked territory. A contrary interpretation would lead, in practice, to disproportionate consequences for the functioning of the internet and for the online exploitation of works. If any theoretical possibility of circumventing a geo-blocking system were sufficient to consider that the work had been communicated to the public in the excluded territory, it would become extremely difficult, if not impossible, to lawfully exploit a work online in a State where it is in the public domain, when it remains protected in another Member State.
The Court’s solution must therefore be understood as a recognition that the owners and users of a website must be able to organise the online exploitation of a work in accordance with the territorial limits of copyright protection. The existence of a VPN cannot be treated as automatically extending the will of the publisher of the work to all the territories from which access can be obtained indirectly. Otherwise, the territorial delimitation of copyright would become, in the digital environment, devoid of practical effectiveness.
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The judgment delivered by the Court of Justice of the European Union in the case C-788/24, Anne Frank is particularly relevant from the perspective of copyright holders.
Firstly, the decision confirms the usefulness of geo-blocking as a tool for territorial rights management. Rightsholders who hold rights only in certain Member States can use technical measures to limit access to content in the territories where their rights are still in force. This solution is particularly relevant for works that enter the public domain at different times in the Member States, as a result of differences in national protection regimes or transitional provisions.
Secondly, the judgment suggests that rightholders should pay particular attention to the effectiveness and credibility of the technical measures adopted. A purely formal or apparent restriction is not sufficient. For territorial delimitation to be convincing, it is necessary for the operator to demonstrate that it actually sought to exclude the public from the territory in which the work is protected. Therefore, from a practical point of view, rightholders and licensees should document the implementation of geo-blocking measures, use reasonably available technologies and provide clear information on territorial restrictions.
However, the Court’s solution also raises some critical issues. On the one hand, the effectiveness of geo-blocking cannot be absolute. VPN technology allows users to mask their geographical location, and the constant evolution of digital tools makes it difficult to guarantee the absolute effectiveness of territorial restrictions. For this reason, the judgment should not be interpreted as an obligation for holders to eliminate any possibility of indirect access, but rather as a recognition of a standard of reasonable diligence.
On the other hand, the solution creates an important distinction between the action of the owner or operator of the website and the autonomous action of the user who circumvents the restriction. The fact that a user in a blocked territory uses a VPN does not automatically mean that the person who published the work communicated it to the public in that territory. This separation is essential to avoid excessive liability of owners or operators of platforms for actions that they actually tried to prevent.
At the same time, the ruling should not be seen as an absolute protection for any online publication accompanied by geo-blocking. If the restrictions are purely formal, easily circumvented, or if there are indications that the operator is in fact targeting an audience in a territory where the work is protected, legal analysis may lead to a different conclusion. The essential element is the existence of a real intention to exclude that audience, reflected by technical measures and the concrete conduct of the person making the work available.
The Anne Frank Fonds case is a relevant decision for adapting copyright to the realities of the internet. The Court attempts to maintain a balance between the effective protection of rights holders and the need to allow the lawful exploitation of works in the states where they have entered the public domain. From the practical perspective of rights holders, the main message is that territorial protection of copyright can be managed in the online environment by technical geo-blocking measures, and the mere possibility for a user to circumvent these measures by means of a VPN is not sufficient, in itself, to qualify the publication as a communication to the public in the blocked territory.
The solution is, however, one that requires active and diligent conduct from the holders: the protection of rights in the digital environment cannot be ensured solely by invoking copyright, but also requires the use of appropriate, proportionate and effective technical mechanisms. In this sense, the judgment reinforces the idea that, in the digital economy, legal protection and technological protection of copyright must function as a unitary system.
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