Geo-Blocking, Copyright and the Right to Make Works Available Online
In Anne Frank Fonds v Anne Frank Stichting Case C-788/24 the Court of Justice of the European Union, the highest court of the EU, considered the right to make a work available on a website and the impact of technical protection measures implemented to restrict access to the work. The decision should be helpful to online content providers.
The Right to Make Available
The Copyright Act includes as one of the rights which make up copyright, the sole right in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication. This right has been amended to further include the right of making the work available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public. These are key rights in the context of the internet.
The Facts
The plaintiff owns the copyright in the works of Anne Frank. A part of those works is protected by copyright in the Netherlands until 2037. In other EU Member States, those works are in the public domain. The defendant published a scholarly edition of Anne Frank’s manuscripts in Dutch, free of charge on its website. Access to the site was restricted by a ‘geo-blocking’ system which prevented the website from being accessed if the user attempts to connect to it from a Member State in which the manuscripts are still protected by copyright.
The plaintiff brought a proceeding for copyright infringement in the Netherland courts alleging infringement of the right of making the work available to the public by telecommunication. Both the court of first instance and the appeal court concluded that there was no “communication to the public”. Because of legal uncertainty this question was referred to the CJEU.
The Decision
The Court said previous decisions concerning the internet had made it clear that a copyright holder cannot limit his or her consent by means other than ‘effective’ technological measures within the meaning of the relevant legislation. The existence of effective technological measures adopted or imposed by the copyright holder in connection with the communication of a work on the internet reflects the copyright holder’s intention to give access to the protected work only to a particular circle of internet users, rather than all internet users.
The effectiveness of a technological measure does not have to be absolute, but must be assessed, in accordance with the principle of proportionality, in the light of the objective of preventing or eliminating acts not authorized by the copyright holder. This involves, among other things, verifying that the measure concerned is suitable for achieving that objective and does not go beyond what is necessary for that purpose and seeking, a fair balance between the protection of intellectual property rights and the protection of other fundamental rights such as freedom of expression or of information.
It is necessary to examine whether technological measures other than the measure that was implemented could have caused less interference with the activities of third parties not requiring authorization by the copyright holder or fewer limitations to those activities, while still providing comparable protection of the copyright holder’s rights. Consideration must also be given, by way of a comparison, to the costs and the technological and practical implementation of the different types of technological measures available.
The Court said the posting of the work in issue was not a “communication to the public”, where that geo-blocking measure was ‘effective’, in so far as it was ‘state of the art’, even if internet users could circumvent it using a VPN or similar service. However, the referring court will have to determine whether the measure is in fact ‘state of the art’.
Comment
There have been relatively few decisions dealing with “technical protection measures” in this context. Regional coding and access restriction systems are widely used by copyright owners to control access to their products but are not always thought of as involving the use of technical protection measures. This decision provides a useful framework for considering the effectiveness of those systems.
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John McKeown
Loopstra Nixon LLP.
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This article is of general nature and is not intended to provide specific legal advice as individual situations will differ. Specialist advice should be sought about your specific circumstances. Copyright © John Mckeown, All rights reserved. To unsubscribe to the IP Update please send me an email at jmckeown@Ln.Law
A version of this article originally appeared in the Law360 Canada published by LexisNexis Canada Inc.
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