Digital
Borders for
Copyright.
Digital
Borders for
Copyright.
of
Is a geographic country-based block sufficient to protect copyrights in an EU member state, even if it can be circumvented using a VPN? What does a digital single market actually mean if the same work is protected in one country but has long been in the public domain in a neighboring country?
What is it all about?
Anne Frank’s diary remains protected in the Netherlands until 2037, but has long been in the public domain in Belgium. In 2021, a Belgian association, in collaboration with the Anne Frank Foundation, posted a scholarly edition of the original manuscripts online for free, without the permission of the Anne Frank Fund, the rights holder. Access from the Netherlands was technically blocked. Users from countries where the work is in the public domain simply had to confirm with a single click that they were indeed accessing it from those countries. The Anne Frank Fund nevertheless viewed this as a copyright infringement in the Netherlands and took the matter to court, but was unsuccessful in the first two instances. The case eventually reached the Hoge Raad of the Netherlands, which referred the matter to the European Court of Justice.
Decision of the ECJ
Essentially, the issue at the heart of the Judgment of the ECJ dated July 9, 2026 – Case No. C-788/24 whether the publication of the work on the website, despite the country-specific block, would constitute unauthorized public communication in the Netherlands, because resourceful users could bypass the block using a VPN. EU copyright law grants authors the exclusive right to decide on the public communication of their works, which includes making them available on the Internet. According to the Court of Justice’s established case law, such communication requires, on the one hand, an act of transmission and, on the other hand, an audience to which the rights holder had not already directed its original authorization.
The Court clarified that a geographic blocking measure would be considered an effective technical protection measure precisely if it were state-of-the-art. In that case, it would be presumed that the operators had expressed their intention not to make the work accessible to users in the Netherlands, even if those users could technically circumvent the block. Thus, the mere possibility of circumvention would not automatically render an otherwise effective measure ineffective.
Even though geographic blocking measures—including state-of-the-art ones—can be circumvented, just like any technical measure, particularly by using a VPN or a comparable service, the mere possibility of circumvention cannot in every case be the decisive factor in concluding that these measures are inappropriate and therefore ineffective.
A system based solely on self-reporting, in which users simply click to confirm which country they are from, is not sufficient, according to the Court, as it depends entirely on the honesty of the users. It is now up to the Hoge Raad itself to determine whether the specific technical blocking measure in question meets the required state of the art. In the event that the block is indeed ineffective, the ECJ also clarified that the website operator would then be liable, not the VPN provider, since the latter does not provide users with direct access to protected content.
Unanswered Questions
The real issue behind this ruling is a structural problem with copyright law in the EU. The directive is intended to harmonize the single market, but it still allows for the same work to be protected in one member state while being in the public domain in a neighboring country—for example, due to differing transitional provisions, as in the present case. The Court of Justice effectively accepts this patchwork situation by allowing rights holders to enforce their continuing national protection rights through technical barriers on the internet. Whether this is consistent with the actual goal of a digital single market remains to be seen.
Conclusion
The ruling provides an important clarification in practice, namely that technical protection measures do not fail simply because they can be circumvented with sufficient technical effort.
At the same time, the Court of Justice deliberately leaves the crucial question of when a block actually corresponds to the state of the art to the national courts, thereby creating considerable uncertainty that is likely to give rise to future litigation.
The Court of Justice also confirms the continuing fragmentation of copyright law along national borders within the EU in the digital sphere, even though the underlying directive is specifically aimed at harmonization.
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