A recent judgment from the Court of Justice of the European Union ("CJEU") has provided clear guidance on how to protect copyright in different EU Member States through geo-blocking. In its judgment, the CJEU answered questions from the Supreme Court of the Netherlands. The questions were about Article 3(1) of the Infosoc Directive, which covers the right of communication of works to the public, and the effect of geo-blocking. 

Background

The Diary of Anne Frank ("the Diary") is a book compiled from Dutch language diary entries written by 13-year-old Holocaust victim Anne Frank. The Diary discusses Anne's experiences in hiding with her family for two years during the Nazi occupation of the Netherlands. The Diary was first edited and published in 1947 by the family's sole survivor, Anne's father Otto. In 1963 Otto established the Anne Frank Fonds ("the Fund"), a charitable organisation to represent the legacy of the family and to propagate the ideals expressed in the Diary. Upon Otto's death, all copyright in the Diary was inherited by the Fund, while the original manuscripts themselves were bequeathed to the (then) Netherlands Institute for War Documentation.

In 2016 copyright expired in the Netherlands in the original Diary published by Otto. However, there were some parts of the Diary which were not published until 1986 and these parts remain protected by copyright in the Netherlands until 2037. This copyright is owned by the Fund. In other EU member states, including Belgium, this copyright has expired and all the Diary entries are in the public domain.  

In September 2021, one of the Defendants, the Dutch Association for Research and Access to Historical Texts, published a scholarly version of the Diary online. The version was in Dutch, free to access and had geo-blocking in place. If someone tried to access it from the Netherlands (or the UK or any EU Member State where parts of the Diary are still within copyright protection), they were greeted by a message saying, "access denied", along with an explanation that this was due to national copyright restrictions. The geo-blocking mechanism displayed an "access check" message to users from EU Member States where the copyright had expired and asked the user to confirm they were accessing it from a list of countries where the Diary was in the public domain. The Fund sued the Defendants for copyright infringement in the Netherlands, on the basis that the geo-blocking could be circumvented by users in the Netherlands using a VPN and was therefore a communication to the public. 

CJEU Questions

The case went all the way up through the Dutch courts to the Dutch Supreme Court, who stayed proceedings and referred 3 questions to the CJEU: 

1. Is Article 3(1) of the Infosoc Directive 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?
3. If circumventing the blocking measure does result in a communication of the work to the public in the blocked country within the meaning of Article 3(1) of the Infosoc Directive, who is responsible for that communication to the public? Is it the website operator or does the VPN provider play a role?

CJEU Decision

The Attorney General gave an opinion in January of this year, and the CJEU agreed with his points. 

1. No communication to the public: Where there is an "effective", "state of the art" geo-blocking measure in place, there is no communication to the public in the geo-blocked Member States, even if internet users in those Member States can get around the measure using a VPN or similar service.
    
2. Balancing of interests: As the Attorney General had noted, the CJEU emphasised that there needs to be a proportionate and fair balance between the copyright holder's interest on one hand, and on the other hand, the public's interest in having access to works in the public domain, in accordance with freedom of expression and information. Just because other technological measures were likely to take greater account of the copyright holder's interest, such as a subscription or login protected by a username and password, did not of itself mean that a geo-blocking measure was ineffective.
    
3. Publisher responsible where the geo-blocking measure is ineffective: Just because a VPN or other similar service provider made a service available that can enable a communication to a public, that did not mean that provider was carrying out an act of communication. They provide a lawful technical tool which users can legitimately use. In such circumstances the communication to the public is attributable to the person who published the work on the website with an ineffective geo-blocking measure, not the provider of the VPN whose tool enabled a user to circumvent that ineffective measure. 

Comment

• Geo-blocking is legally effective if it is technically effective. The effectiveness of a geo-blocking measure will be assessed at the time of the alleged infringement and by reference to then-current technological standards. This creates an ongoing compliance obligation for publishers and a corresponding moving target for copyright holders seeking to demonstrate inadequacy. The capability of technological measures used by publishers must be reassessed as technology evolves.
   
• Self-declaration is insufficient. One specific helpful part of the judgment was that the Defendants' use of an additional self-declaration alert system (in addition to the geo-blocking), where users simply selected a box to confirm they were accessing the website from a Member State where the Diary was in the public domain, was not an "effective" technological measure. It depended entirely on users' honesty and was consequently inadequate. Publishers should therefore avoid reliance on a self-declaration system. 
   
• Targeting vs accessibility. The Court did not analyse the relevance of targeting of a certain Member State. The Diary was published by the Defendants in Dutch, but the CJEU did not really consider this element in detail. What appears to matter is whether the Diary was accessible from the Netherlands, not the targeting thereof. While not explicitly dealt with, this may suggest a different approach to the UK, where the courts require targeting for a communication to the public, where the communication originates from outside the UK. 
   

The case will now head back to the Supreme Court of the Netherlands to decide whether the geo-blocking used was "effective" and "state of the art" and the outcome of that.