Media rights are regularly sliced and diced globally in a complex manner. Whether we’re talking about sports broadcasts, your favourite reality show, the latest blockbuster film, or a book, all are likely to have been licensed on territorial basis. Geo-blocking is the key tool to enabling rights-holders to extract maximum commercial value by segregating digital rights territorially, but virtual private networks (VPNs) are often used to get around these virtual borders.

A recent case relating to Anne Frank’s diaries (explored in detail below), suggests that websites using state of the art geo-blocking to comply with territorial licence restrictions can rely on this. Provided the website doesn’t encourage circumvention, if people nevertheless use VPNs to access their content from other territories (i.e. places where the website doesn’t have the rights to disseminate the content), the website will not be liable for infringement.

VPNs are prevalent, and although some platforms do deploy a range of VPN blocker tools, these have varying degrees of success. VPN providers are often one step ahead. In Spain, LaLiga have recently obtained a court order requiring two VPN’s to block streams of LaLiga games not licensed for Spain (see Information Note | LALIGA). Similar ‘dynamic’ blocking injunctions are frequently obtained in the UK against ISPs in respect of illegal websites, but are not commonplace against VPNs. However, based on the recent ‘Anne Frank’ case, it seems addressing the VPN issue directly is the way forward in the EU.

A Frank assessment

In Anne Frank Fonds v Anne Frank Stichting and others (Case C‑788/24), Advocate General Rantos considered if Article 3(1) of the Copyright Directive (2001/29/EC) means that the publication of a work on a website is only a communication to the public in a particular country if it is addressed to the public in that country. In addition, he considered the effect of geo-blocking.

The case centres on Anne Frank's diary. Anne Frank Fonds (the applicant) holds copyright in certain versions of the diary, which remain protected in the Netherlands until 2037. However, in several other countries, copyright has expired making the diaries a ‘public domain’ work, including since 2016 in Belgium.

The dispute arose when Anne Frank Stichting and various other bodies (the defendants) published a scholarly edition of the diary manuscripts on the website annefrankmanuscripten.org in Dutch. The site included versions still protected by copyright in the Netherlands.

The defendants had implemented a geo-blocking system which meant the website could only be accessed in public domain countries, and an alert system by which, when the website detected access from a public domain country, the user was requested to confirm that they were accessing the website from one of those countries (i.e. the website was seeking confirmation that a VPN wasn’t being used). The applicant argued that the defendants had infringed its copyright since the protected documents were still accessible online in the Netherlands by using a VPN.

The Supreme Court of the Netherlands referred the matter to the ECJ, and Advocate General Rantos has now delivered his opinion. Although this is not binding on the ECJ, it usually (but not always!) follows the AG’s opinion.

The AG opinion

Advocate General Rantos said:

There is no requirement under Article 3(1) of the Copyright Directive for a website publication to be 'addressed to' a particular country's public to count as communication to the public there.

However, publishing content on a website does not amount to 'communication to the public' in a country where that content is protected if the site is subject to effective geo-blocking and other non-technical measures designed to impede or discourage access. The effectiveness of these measures must be assessed in light of all the circumstances, including how easily users in the blocked territory can circumvent them using a VPN.

If, despite geo-blocking, there is still a 'communication to the public' in the blocked country, VPN providers should not be liable for their users' circumvention unless the provider actively encouraged unlawful use to access protected works.

The AG said that just because users manage to circumvent geo-blocking does not automatically mean the website operator has communicated the work to the public in the blocked territory. If it did, territorial copyright management on the internet would become impossible - any online publication would effectively be global. Therefore, a publisher who implements effective technical measures (such as geo-blocking) to prevent unauthorised access should not be treated as communicating to the public in blocked countries. The position would be different only if the technical measures were deliberately ineffective or easily circumvented by design.

While it is ultimately for the referring court to determine effectiveness, the AG offered some useful guidance, saying that "state of the art" geo-blocking (as in this case) was an appropriate measure to ensure, as far as possible, copyright protection for the applicant. However, no technology was infallible, so that there was a need, and corresponding obligation on the website owner, to regularly assess new circumvention risks and, if necessary, adopt additional measures to prevent such circumvention. Whether circumvention methods are easy to use matters. A defendant cannot be held liable for third parties' unlawful conduct if they have implemented genuinely effective protection measures.

Additional measures to discourage access, such as the confirmation alert used here, are also relevant, even if secondary to the technical blocking itself.