In its judgment of 9 July in Case C-788/24, Anne Frank Fonds, the Court of Justice of the European Union (CJEU) clarified the limits of the territorial nature of copyright law within the European Union in relation to the online making available of works that are subject to different copyright regimes across Member States.
The Court held that a work which has entered the public domain in one Member State may be lawfully made available online by an entity established in that Member State, even if the same work continues to enjoy copyright protection in another Member State.
However, this is subject to the condition that the entity making the work available implements effective geo-blocking measures to restrict access from Member States in which the work remains protected. The CJEU further stated that the mere theoretical possibility of circumventing such measures—for example, through the use of a VPN—is not, in itself, sufficient to conclude that there has been a “communication to the public” in the Member State where copyright protection still applies.
The judgment is expected to have significant practical implications for libraries, archives, museums, foundations, and other institutions that provide digital collections to the public, as it offers important clarification regarding the compatibility of the online dissemination of works with the principle of the territoriality of copyright law within the European Union.
At the same time, the ruling highlights the crucial role of effective technological geo-blocking measures as a mechanism for balancing the free flow of information with the protection of copyright in those Member States where such rights continue to subsist.
The case concerns the Anne Frank Fonds and is expected to become a landmark decision for the cross-border availability of digital content and the interpretation of the concept of “communication to the public” under EU copyright law.
Read the full judgment here.
Read the press release here.