C-788/24 Anne Frank Fund
Request for a preliminary ruling of the Court of Justice
Deadline to leave your brief: March 7, 2025
Keywords: copyright, communication of works
Subject: Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society: Article 3(1).
Facts:
The applicant is the “Anne Frank Fonds,” and the defendants are the “Anne Frank Stichting,” the “Royal Netherlands Academy of Arts and Sciences,” and the “Association for Research and Access to Historical Texts. The Association has a website on which a new scholarly online edition of Anne Frank’s diary has been published. The question is whether the Foundation c.s. is infringing the Fund’s copyright in the Netherlands with the publication. After all, the Fund still has copyright on parts of the diary in the Netherlands until 2037. In other member states, copyright on the work already expired in 2016.
Consideration:
The question is whether the use of geographical access blocking, making the website inaccessible from an IP address in the Netherlands, prevents that publication from making a ‘communication to the public’ in the Netherlands as referred to in Article 3(1) of Directive 2001/29. The question here is whether this communication is deemed to have been made in the event that the Association’s website can still be visited from the Netherlands via a VPN service. The referring court seeks clarification on the meaning of a communication to a particular audience.
Questions referred:
1. Must Article 3(1) Copyright Directive be interpreted as meaning that a publication of a work on the Internet can only 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 should be considered in assessing this?
2. Can there be a communication to the public in a certain country if by means of (state ofthe art) geo-blocking it has been ensured that the website on which the work is published can only be reached by the public in that country by circumventing the blocking measure with the help of 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 relevant in this regard? In answering this question, does it make any difference whether, in addition to the geo-blocking measure, other measures have been taken to hinder or discourage access to the website by the public 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 the Copyright Directive, is such communication made by the person 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?
Cited (recent) case law: C-682/18 ; C-135/23 GEMA; C-104/22 Watermaster.
See attachment for the referral ruling, and click here for the Court of Justice file (where available).
A prediction of the CJEU’s likely ruling
The central issue revolves around whether geo-blocking technology that can be circumvented through VPN services constitutes an effective measure to prevent “communication to the public” under Article 3(1) of the Copyright Directive. Let’s examine each question systematically:
Question 1: Territorial Targeting of Communications
Based on recent case law, particularly C-682/18 (Peterson v. Google) and C-135/23 (GEMA), the Court has emphasized that communication to the public requires both an “act of communication” and reaching a “public.” The Court will likely hold that:
– A publication on the Internet can constitute a communication to the public in a specific country even without explicitly targeting that country’s public, as the mere accessibility of content can establish communication.
– However, the Court will likely provide guidance on factors to consider when assessing territorial targeting, such as:
1. The technical measures implemented to restrict access
2. The language and content of the website
3. The nature of the protected work (here, a work of significant cultural importance)
4. The reasonable expectations of copyright holders regarding territorial protection
Question 2: Effectiveness of Geo-blocking
Drawing from C-104/22 (Watermaster), which addressed technological protection measures, the Court will likely rule that:
– Geo-blocking must be evaluated based on its practical effectiveness rather than theoretical perfection
– The mere possibility of circumvention through VPN services does not automatically negate the effectiveness of geo-blocking
– However, the Court will likely establish a “reasonable measures” standard, considering:
– The state of available technology
– The proportionality of additional protective measures
– The balance between copyright protection and access to cultural heritage
The Court will likely hold that the extent of VPN usage in the blocked country is relevant but not determinative. The focus should be on whether the geo-blocking constitutes a reasonable technical barrier rather than an absolute one.
Question 3: Attribution of Communication
This is perhaps the most novel aspect of the case. The Court will likely rule that:
– The original publisher remains responsible for the communication even when users employ VPN services to access the content
– This follows the principle established in previous cases that the original act of making available is the relevant communication
– However, the Court may introduce a “reasonable foreseeability” test:
– If the publisher has implemented state-of-the-art geo-blocking
– And taken additional reasonable measures to discourage circumvention
– Then liability might be limited or excluded for access through sophisticated circumvention methods
Final Prediction:
The Court will likely adopt a balanced approach that:
1. Recognizes geo-blocking as a legitimate means of territorial copyright protection
2. Requires implementation of “reasonable technical measures” rather than demanding perfect effectiveness
3. Places primary responsibility on the publisher while acknowledging the limits of technical controls
4. Considers the specific context of cultural heritage works and the public interest in scholarly access
The Court will likely provide specific guidance on what constitutes “reasonable measures” in the context of online publishing, potentially including:
– Implementation of current best practices in geo-blocking
– Clear notices about territorial restrictions
– Technical monitoring of circumvention attempts
– Regular updates to security measures
This ruling would balance the legitimate interests of copyright holders with the practical realities of internet technology and the important public interest in scholarly access to cultural heritage works. The Court will likely emphasize that while perfect territorial control is not required, publishers must demonstrate genuine efforts to respect territorial copyright limitations.
Some key arguments from the perspective of communicators to the public.
The concept of “communication to the public” under Article 3(1) of the Copyright Directive has been extensively developed through CJEU case law. In the YouTube/Cyando case (C-682/18), the Court established that this concept requires two cumulative criteria:
1. An “act of communication” – which involves making a work available to the public in such a way that they may access it
2. A “public” – which must be an indeterminate but fairly large number of potential recipients
The defendants can develop this argument by emphasizing that their geo-blocking measures specifically prevent the second criterion from being met in relation to the Dutch public. By implementing technical barriers to access from Dutch IP addresses, they have deliberately excluded Dutch users from their target audience.
Technical Measures and Reasonable Efforts
The GEMA case (C-135/23) provides important guidance on the assessment of technical measures. The defendants can elaborate their position by pointing to several aspects:
1. State-of-the-Art Implementation: Their geo-blocking system represents current best practices in territorial access control. This demonstrates their commitment to respecting territorial copyright limitations.
2. Proportionality of Measures: The Court has consistently held that copyright protection measures must be balanced against other rights and interests. The defendants can argue that their approach strikes an appropriate balance between:
– Protecting copyright holders’ interests
– Enabling legitimate cross-border access where copyright has expired
– Respecting user privacy
– Maintaining network functionality
3. Technical Limitations: Drawing from Watermaster (C-104/22), they can expand on why absolute prevention is neither technically feasible nor legally required. This includes:
– The inherent limitations of IP-based blocking
– The legitimate uses of VPN services for privacy and security
– The technical impossibility of distinguishing between legitimate and illegitimate VPN use
VPN Circumvention and Legal Responsibility
The question of responsibility for VPN-enabled access deserves deeper examination. The defendants can develop their argument by drawing parallels to established principles of intermediary liability:
1. Chain of Causation: They can elaborate on how VPN access involves multiple independent actors:
– The content provider (defendants)
– The VPN service provider
– The end user
– Various network intermediaries
2. User Autonomy: The deliberate choice to use a VPN represents an autonomous action by users, similar to how the Court has treated other forms of technological circumvention. This breaks the direct link between the defendants’ actions and any resulting access.
3. Technical Architecture: The defendants can explain in detail how VPN technology works to demonstrate that any access from the Netherlands occurs through a completely different technical pathway than their intended publication.
Scholarly Context and Public Interest
The scholarly nature of the publication deserves further development:
1. Cultural Heritage: The Anne Frank diary represents a uniquely important historical document. The defendants can argue that their scholarly edition serves crucial educational and research purposes aligned with EU objectives of promoting cultural heritage preservation and access.
2. Academic Freedom: The Court has recognized the importance of academic freedom in various contexts. The defendants can argue that overly restrictive interpretation of communication to the public could have a chilling effect on scholarly work.
3. Public Interest Balance: They can elaborate on how their approach serves the public interest by:
– Maintaining rigorous copyright protection through geo-blocking
– Enabling scholarly access where legally permitted
– Contributing to historical research and education
– Preserving cultural heritage
Practical Implications
The defendants can expand on the practical consequences of treating VPN access as communication to the public:
1. Technical Burden: This would require content providers to implement increasingly invasive monitoring systems, potentially including:
– Deep packet inspection
– User authentication requirements
– Restrictions on encrypted connections
2. Privacy Implications: More aggressive blocking measures would necessarily involve greater interference with user privacy, potentially conflicting with GDPR requirements.
3. Market Fragmentation: Stringent requirements for preventing VPN access could effectively prevent many smaller organizations from engaging in cross-border content sharing, undermining Digital Single Market objectives.
The above analysis demonstrates that the defendants’ position aligns with both the letter and spirit of EU copyright law, while taking into account broader legal principles and practical realities. Their approach represents a reasonable and proportionate effort to respect territorial copyright limitations while enabling legitimate scholarly access where permitted.
Some key arguments from the perspective of copyright holders
This case is about online accessibility and territorial copyright protection. The fundamental argument centers on the need to protect copyright holders’ exclusive rights in territories where protection still exists, even in an interconnected digital world. A copyright holder would likely argue that the mere possibility of accessing copyrighted content through VPN services from the Netherlands constitutes a communication to the public in that territory, based on several key points:
Regarding Question 1, a copyright holder would argue that the intention to address a specific territorial public is not the decisive factor in determining whether a communication to the public occurs. This aligns with the CJEU’s reasoning in case C-682/18 (Peterson v. Google), where the Court emphasized that the actual accessibility of content, rather than mere targeting, can constitute communication to the public. A copyright holder would stress that allowing intention to be determinative would create a significant loophole in copyright protection.
On Question 2, a copyright holder would present a multi-layered argument about the effectiveness of geo-blocking:
First, a copyright holder would draw parallels to the Court’s reasoning in C-135/23 (GEMA), suggesting that if circumvention of technical protection measures is relatively easy and widespread through VPN services, the geo-blocking cannot be considered effective in preventing communication to the public. A copyright holder might argue that modern VPN services are readily available, user-friendly, and increasingly common among internet users in the Netherlands.
Second, a copyright holder would contend that the threshold for what constitutes “communication to the public” should be interpreted in light of technological realities. If a significant portion of the Dutch public can and does use VPN services, the theoretical barrier created by geo-blocking becomes merely nominal rather than effective protection of the copyright holder’s interests.
On Question 3, regarding attribution of responsibility, a copyright holder would likely argue that the publisher remains liable for communication to the public even when access occurs through VPN services. They might draw an analogy to the Court’s reasoning in C-104/22 (Watermaster), suggesting that when a party makes protected content available online, they must take all reasonable and proportionate measures to prevent access from territories where they don’t hold rights. The intervention of VPN providers should not break the causal chain of responsibility.
A copyright holder could also present broader policy arguments about the effectiveness of territorial copyright protection in the digital age:
1. If geo-blocking that can be circumvented by VPNs is deemed sufficient, it would effectively nullify territorial copyright protection for online content, as virtually all geo-blocking can be circumvented.
2. The growing sophistication of VPN services makes them increasingly accessible to average internet users, potentially creating a significant market impact in territories where copyright protection still exists.
3. The publisher’s awareness of VPN circumvention possibilities should create an obligation to implement additional protective measures beyond basic geo-blocking.
A copyright holder might propose that the Court adopt a “reasonable effectiveness” standard, where copyright holders can require implementation of multiple technical and legal measures to protect their territorial rights, such as:
– Advanced geo-blocking technology
– Terms of service prohibiting VPN circumvention
– User authentication requirements
– Active monitoring and blocking of known VPN services
This approach would align with the Court’s traditional strong protection of copyright holders’ interests while acknowledging the technical challenges of territorial enforcement in the digital age.
In conclusion, a copyright holder would argue that the ability to access content through VPN services constitutes a communication to the public in the Netherlands, requiring either more effective technical measures or abstention from publication until copyright expiration. This interpretation would preserve the practical value of territorial copyright protection in the digital age.