On 9 July 2026, the Court of Justice of the European Union (CJEU) gave its preliminary ruling in the Anne Frank Fonds case (Case C-788/24), clarifying how the concept of “communication to the public” applies where a copyright-protected work has entered the public domain in some Member States but remains protected in others.
The case arose from the online publication of a scientific edition of Anne Frank’s manuscripts, which had entered the public domain in Member States such as Belgium and the UK, but remained protected under Dutch copyright law. Access to the website was restricted through geo-blocking measures preventing users located in the Netherlands from accessing the content.
The CJEU recalled that the notion of “communication to the public” comprises two cumulative elements: an act of communication of the protected work and its communication to a public, both of which require an individual assessment. The Court held that making a work available online does not infringe copyright in Member States where it remains protected, provided that access is “effectively” restricted to users in Member States where the work has entered the public domain. Such restriction need not be absolute: its effectiveness must be assessed in accordance with the principle of proportionality, striking a fair balance between intellectual property rights and other fundamental rights, including freedom of expression and information.
Accordingly, the CJEU held that (a) state-of-the-art geo-blocking may, in principle, constitute an effective technological measure even if it can be circumvented through VPNs or similar services, subject to the referring court’s assessment in the specific case; and (b) where the safeguards implemented are ultimately deemed insufficient to prevent access from territories where copyright protection subsists, the resulting communication to the public remains attributable to the operator making the work available online, rather than to the VPN provider used by end-users to circumvent the geo-blocking.
Newsletter n. 121 – August/September 2026
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