Abstract
A work may be in the public domain in one country while still protected by copyright in another. Putting it online therefore does not necessarily mean that it may be made accessible everywhere. In its judgment of 9 July 2026 in Case C-788/24, the Court of Justice of the European Union clarified that effective geo-blocking may exclude from a website users in countries where the work remains protected, even if some users manage to circumvent it by using a VPN. The real issue, however, is proving that the measure adopted is up to date, proportionate and genuinely capable of preventing such access.
Can a work be protected only in certain countries?
The dispute arose from the free publication, on a website registered in Belgium, of a digitised scholarly edition of Anne Frank’s manuscripts. In Belgium and other Member States, those texts had already entered the public domain; in the Netherlands, however, some of the works remain protected until 2037.
To reflect this difference, the website had implemented a geo-blocking system based on IP addresses. Anyone attempting to connect from the Netherlands received an “access denied” message. Users accessing the site from countries where the manuscripts were in the public domain were also required to declare that they were actually located in one of those territories.
The Anne Frank Fonds, which holds the rights still in force in the Netherlands, nevertheless argued that the publication also amounted to an unauthorised communication to the public in that country. The reason was simple: a Dutch user could circumvent the geo-blocking by using a VPN, making the connection appear to originate from another country.
The Supreme Court of the Netherlands therefore asked the Court of Justice whether the mere possibility of circumventing the blocking measure was sufficient for the work to be regarded as having also been communicated to the Dutch public and, if so, whether liability should lie with the party that had published the manuscripts or with the VPN provider.
The judgment of the Court of Justice of 9 July 2026 in Case C-788/24 starts from an often-overlooked point: copyright remains territorial. The expiry of protection in one country does not automatically place the work in the public domain in others.
When does online publication infringe copyright in another country?
The legal framework is set out in Article 3(1) and Article 6(3) of Directive 2001/29/EC. The former grants authors the exclusive right to authorise or prohibit the communication of their works to the public; the latter defines when a technological measure may be considered effective.
According to the Court, anyone publishing a work that is in the public domain only in certain Member States must adopt effective technological measures to prevent access from Member States where protection remains in force. If the geo-blocking meets this requirement, users in the excluded country are not part of the public targeted by the act of communication. Accordingly, no communication to the public within the meaning of the Directive occurs in that territory.
It is not enough, however, to install just any geographical filter. The measure must be at the “state-of-the-art”: a formulation that requires a specific and up-to-date assessment, which in this case is entrusted to the national court.
Effectiveness does not mean absolute invulnerability. It is necessary to determine whether the system is capable of achieving its objective, whether it goes no further than necessary and whether it ensures a fair balance between protecting the right holder and freedom of access to the work in countries where it is now in the public domain. The costs and technical feasibility of possible alternatives must also be considered.
This approach avoids two extremes: on the one hand, effectively extending the protection afforded by one country throughout the Union; on the other, depriving the exclusive right of practical effect in the country where it remains in force.
Does the possibility of circumventing geo-blocking undermine its effectiveness?
The most significant part of the judgment concerns VPNs. As the Court states, “the possibility of such circumvention cannot, in itself and in all circumstances, be a decisive factor” (paragraph 51). This is, on balance, a reasonable conclusion: no technological measure is necessarily insurmountable in itself; requiring an absolute barrier would make it almost impossible to publish a work online for as long as it remains protected in even one Member State.
The possibility of circumvention must nevertheless form part of the overall assessment. An outdated filter that is easy to bypass and fails to reflect the technical solutions available may not meet the required threshold. Conversely, up-to-date geo-blocking that is ordinarily capable of preventing access from the excluded territory may remain effective even if a particularly determined user manages to conceal their location.
The Court also distinguishes between a genuine technical measure and a mere notice. On the website dedicated to the manuscripts, users were also required to declare that they were in a country in which the work was in the public domain. A step that depends on users’ honesty would not, by itself, have been considered effective. It may serve an informative or deterrent function, but it is no substitute for technically adequate access control (based, for example, on the user’s IP address).
If the geo-blocking proves ineffective and the publication therefore amounts to a communication to the public in the protected country, liability lies with the party that placed the work online. It does not, merely because it has made a lawful technical tool available, lie with the VPN operator: the provider does not directly give access to the work and does not perform the indispensable and deliberate role required by the EU concept of “communication to the public”.
What should be checked before publishing a work that is in the public domain only in certain territories?
The judgment does not treat geo-blocking as a solution that will be valid in every case. Rather, it sets out a method of assessment for museums, archives, publishers, digital libraries, universities and businesses seeking to make a work available without infringing rights that remain in force elsewhere.
Before publication, the duration of protection must be determined in each relevant territory, the work and the version being used must be precisely identified, and the holder of any residual rights must be verified. Only after this mapping exercise does it make sense to design the geographical scope of access.
From a technical perspective, it is advisable to document:
- which geolocation and blocking system is used;
- how often it is updated to reflect technological developments;
- which tests demonstrate its effectiveness in the countries where access must be prevented;
- why alternative solutions would be less proportionate or excessively costly;
- which periodic checks are planned after the work is made available online.
This documentation may prove decisive in court. The Court does not hold that every form of geo-blocking is effective; it leaves the national court to assess the measure in light of the available technology, the possibilities of circumvention, the costs and the balance between the rights involved.
The principle emerging from the “Anne Frank case” is therefore pragmatic: the territoriality of copyright can be managed online, but only through measures that are effective, verifiable and maintained over time. The lawfulness of publication will depend not on the label attached to the filter or on a mere on-screen warning, but on the rights that remain in force, the technical architecture selected and the evidence retained to prove that it is genuinely adequate.
Revisionato da: Daniele Camaiora
Data di pubblicazione: 5 Agosto 2026
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Margherita Manca
Avvocato presso lo Studio Legale Canella Camaiora, iscritta all’Ordine degli Avvocati di Milano, si occupa di diritto industriale.