EU's Top Court: Geo-Blocking Protects Publishers in Copyright Disputes, VPNs Not Liable * TorrentFreak

EU’s Top Court: Geo-Blocking Protects Publishers in Copyright Disputes, VPNs Not Liable

The Diary of Anne Frank is widely regarded as one of the best-known literary works in history.

While the diary’s importance is universally recognized, the accessibility of its digital manuscripts has been at the center of a Dutch copyright battle that eventually made its way to the Court of Justice of the European Union (CJEU).

The legal dispute was triggered by differences in copyright protection terms in the EU. Parts of Anne Frank’s manuscripts remain protected in the Netherlands until 2037, while the same material entered the public domain in Belgium and many other EU member states years ago.

To navigate these conflicting laws, the Dutch Anne Frank Stichting published a scholarly edition online using "state-of-the-art" geo-blocking to prevent Dutch residents from accessing the site. Visitors from the Netherlands and other countries where the work is protected are met with a clear message, informing them about these access restrictions.

"The scholarly edition of the Anne Frank manuscripts cannot be made available in all countries, due to copyright considerations," is the message blocked visitors get to see.

Despite these blocking measures, the Swiss-based Anne Frank Fonds was not pleased. The Fonds essentially argued that if a block isn’t 100% bypass-proof, the content shouldn’t be online at all.

The Dutch lower court dismissed this argument, stating the defendants had taken reasonable measures to prevent access from the Netherlands. The Fonds appealed, without result, and the case is now heading back to the Dutch Supreme Court, which referred several questions to the EU’s top court to decide the fate of VPN neutrality and the sufficiency of geo-blocking.

State-of-the-Art Geo-Blocking Is Good Enough

In January, Advocate General Rantos published his opinion concluding that geo-blocking is a sufficient measure and that VPN providers are neutral intermediaries. That opinion was not binding, but it set the tone for what followed.

Last week, the CJEU’s Second Chamber delivered its final judgment. The Court ruled that a work that’s in the public domain in some EU member states, but still under copyright in another, can be published on a geo-blocked website without being considered an infringing "communication to the public" in the protected country.

The Court recognized that geo-blocking can be circumvented with a VPN, but that is not the decisive factor. If a publisher specifically chose to use a state-of-the-art geo-blocking to block visitors from a specific country, it is clear that these people are not the intended audience.

"While it is true that geo-blocking measures, including state-of-the-art measures, can, like any technological measure, be circumvented, particularly through the use of a VPN or similar service, the possibility of such circumvention cannot, in itself and in all circumstances, be a decisive factor in finding those measures to be inadequate and, therefore, ineffective," the judgment reads.

The Court also rejected the idea that publishers should be required to use stricter access controls, such as subscriptions or login requirements. Imposing those measures would disproportionately restrict free access for users in public-domain countries.

The Anne Frank website also uses a self-declaration barrier, shown above, asking visitors to confirm that they are accessing the site from a public-domain country. The Court found that this type of measure, on its own, is not sufficient or effective.

VPN Providers Are not Liable

VPN providers are not liable if they are used to bypass state-of-the-art geo-blocking measures. The same logic also holds if the geo-blocking measures are ineffective to begin with.

The EU’s top court sees VPN providers as neutral intermediaries, referring to previous rulings where YouTube and Uploaded were not held liable for pirating users. As an intermediary, a VPN itself simply acts as a secure, neutral routing tool that’s not communicating anything to the public.

"The provider of a VPN or similar services that are used in order to circumvent an ineffective geo-blocking measure and are lawful technical tools which users may legitimately use cannot be regarded as also having communicated the work to the public," the judgment reads.

The Court explained that a VPN provider "does not give end users access to a protected work" and added that it "does not play an ‘indispensable role'" in any act of communication.

This conclusion is significant. It effectively confirms that the EU’s highest court does not see VPN providers as copyright infringers simply because their technology enables users to bypass geographical restrictions.

The Broader Fallout

The CJEU ruling means that VPN providers are not held directly liable under EU law. However, this finding still has to be...