The digitization of cultural heritage often comes up against national borders in the European copyright area. A ruling by the European Court of Justice (ECJ) now brings legal certainty for online archives and educational institutions. The Luxembourg judges ruled on Thursday in case C-788/24: A work that is in the public domain in a member state may be offered free of charge on the Internet, even if it is still protected by copyright in another EU country.
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However, the prerequisite is an effective geographical barrier that prevents access from the protected regions. This also applies if users can bypass this block via a virtual private network (VPN).
The case is about the copyright status of Anne Frank’s diary, which has also caused problems for Wikipedia operators. Certain parts of her writings are protected in the Netherlands until 2037 due to transitional regulations. In other countries such as Belgium, Germany or Austria the rights have already expired. The Anne Frank Foundation, together with scientific institutions, took advantage of this circumstance to place an academic edition of the manuscripts in Dutch online for free. In order to comply with Dutch copyright law, the initiators installed a geoblocking system for states with existing legal protection.
Dispute over digital fences
The Switzerland-based Anne Frank Fund, which holds the copyrights, saw this as a violation of the law because the geographical blocks were comparatively easy to overcome using VPN. The Supreme Court of the Netherlands, which was ultimately called upon, referred the core question to the ECJ. He should clarify whether such an online offer constitutes illegal “public communication” if users can technically override geoblocking.
In January, ECJ Advocate General Athanasios Rantos had already pointed out that the mere presence of technical backdoors was not enough to constitute illegal public communication in a blocked country. Anyone who takes effective technical measures shows clearly that they do not want to serve the relevant territory. The highest EU court has now confirmed this view. Accordingly, the geographical blocking only has to correspond to the latest state of the art. In this case, it is considered legally effective, even if it can theoretically be circumvented through the initiative of individual users.
Fair compromise instead of endless liability
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The court emphasizes that modern geoblocking represents a fair compromise. It ensures free access for citizens in countries with public domain. At the same time, the approach sufficiently protects the interests of the rights holders in the other countries. The ECJ has thus rejected attempts to shift responsibility for copyright border crossings onto publishers or infrastructure operators.
The judges also made it clear: Liability for any errors lies solely with the institution that makes the work available on the Internet if a block does not correspond to the current state of the art. The provider of the VPN service that users use is not to blame. Shared responsibility on the part of VPN services would probably only be considered if they explicitly promote or incite circumvention.
Based on the ruling, the national courts in the Netherlands must now apply the requirements. The decision sends a signal for European digitalization projects, which can now rely on protection through technically clean geoblocking. The proceedings surrounding Anne Frank’s legacy were seen by experts as a precedent for the question of how tight the digital fences should be in Europe.
Large streaming platforms and the digital economy, whose business models are based on territorially limited exclusive rights, are likely to welcome the decision with relief. A contrary decision would have shaken the foundations of cross-border licensing in the digital single market.
(my)
