August 2026 The international nature of the internet can make it challenging to avoid infringing copyright in certain countries when publishing something online. However, a recent decision of the CJEU suggests effective geo-blocking measures might help website operators avoid getting caught out.
Background
The Anne Frank Fund is the owner of copyright in The Diary of Anne Frank. Since The Diary was written in the early 1940s, the relevant copyright has now expired in many EU Member States. Importantly, the relevant copyright has expired in Belgium, but not in the Netherlands, where the relevant copyright is due to remain in force until 2037.
In 2021, a Belgian website operator published a copy of The Diary of Anne Frank on its website. However, being aware that the relevant copyright is still in force in the Netherlands, the website operator implemented a geo-blocker to prevent access from IP addresses in the Netherlands.
The geo-blocker was setup such that if someone were to try to access the website from an IP address in the Netherlands, they would be presented with a message telling them access is denied. However, if someone were to try to access the website from an IP address in an EU Member State where the relevant copyright has expired, they would instead be presented with a message asking them to confirm they are accessing the website from such a Member State – if that person were then to answer “yes”, they would be granted access to the website.
Despite these measures being in place, modern technologies such as virtual private networks (“VPNs”), which enable internet users to mask their IP addresses, mean that internet users in the Netherlands could, in theory, access the website nonetheless. This raises the question of whether the Belgian website operator has made The Diary of Anne Frank available to the public in the Netherlands, in which case it would have infringed the Dutch copyright.
This debate culminated in a referral from the Supreme Court of the Netherlands to the Court of Justice of the European Union (“CJEU”), seeking guidance on how to decide whether there is copyright infringement or not.
The CJEU has now issued its judgment and referred the case back to the Dutch courts to determine the matter.
Guidance from the CJEU
For the CJEU, the critical question to be answered is whether the steps taken by the Belgian website operator can be considered “effective” at preventing access to the website from the Netherlands. The CJEU held this is ultimately a decision for the Dutch courts, but provided guidance for the Dutch courts to consider.
Firstly, the CJEU was critical of a system which requires a person trying to access a website to declare they are trying to access it from a country in which no relevant copyright is currently in force (like that in the present case). The CJEU held such a system cannot be considered “effective” in preventing access to the website because “it ultimately depends entirely on the internet user’s willingness or unwillingness to complete the declaration in question honestly”.
However, the CJEU held that it is more nuanced whether the geo-blocker, which informs internet users trying to access the website from IP addresses in the Netherlands that they cannot do so, can be considered “effective”. Although there is no question that the geo-blocker can be circumvented, for example by using a VPN, the CJEU noted there is a balance to be struck between (i) the copyright holder’s right to prevent the copyright-protected work being made available to the public in EU Member States in which the copyright is currently in force, and (ii) the rights of third parties to freely share that work in EU Member States in which the copyright has expired.
Thus, according to the CJEU, the geo-blocker cannot be considered “ineffective” solely because ways of circumventing it exist. Instead, the geo-blocker should be considered “effective” if it is a state-of-the-art system which “appears suitable for achieving the objective of preventing acts which are not authorised by the copyright holder”.
The CJEU did not comment on whether it believes the geo-blocker used in the present case meets the above criteria, noting that is a matter for the Dutch courts to now determine. However, the CJEU held that if the geo-blocker is found to be “ineffective”, then it would be the Belgian website operator, rather than the VPN provider, that would be considered to have made The Diary available to the public in the Netherlands, and thus it would be the Belgian website operator that would be liable for infringement under Article 3(1) of the EU’s InfoSoc Directive.
Conclusions
The interplay between the international nature of the internet and the territorial nature of IP rights is complicated, and presents many questions about how the internet can be used in countries where no IP rights exist without infringing IP rights abroad.
The guidance provided by the CJEU in this case is clear: if you are going to publish a work on the internet, then consider which countries copyright may exist in and use state-of-the-art measures to prevent its access from those countries. If someone then finds a way to circumvent those measures, you may nonetheless avoid liability for copyright infringement.
Having said that, website operators should be wary of the need to use state-of-the-art technology, noting that as technology advances it may become necessary to update the measures used.
Whilst the CJEU’s decision is particularly relevant for website operators in the EU, the practical guidance provided might be relevant for those outside the EU too.
