Can a work be published online if it is already in the public domain in one EU member state but is still protected by copyright in another? The European Court of Justice (ECJ) addressed this question in a dispute over an online scholarly edition of Anne Frank’s manuscripts. According to the court, modern geoblocking may be sufficient even if users can circumvent the block using a VPN.

Why the Term of Copyright Protection Varies Within the EU

Copyright is generally territorial in nature. Therefore, the protection of a work may have already expired in one Member State while it remains in effect in another. This is the case for some of Anne Frank’s works: In Belgium and several other countries, they are in the public domain. In the Netherlands, certain texts remain protected until 2037 due to special regulations.

“Public domain” means that a work may be used and published without the consent of a rights holder. However, this poses a problem online: A website is typically accessible across national borders.

The Dispute Over the Online Scientific Edition

In 2021, the Anne Frank Foundation and academic institutions made a Dutch-language edition of the manuscripts available online for free. Geographic blocking was intended to prevent access from countries where copyright protection still applies. Nevertheless, the Anne Frank Fonds, as the rights holder, demanded that the publication be taken down. Users in the Netherlands could ultimately bypass the geoblocking using a Virtual Private Network, or VPN for short.

The Supreme Court of the Netherlands therefore asked the European Court of Justice whether the publication, despite geoblocking, should be considered a “public performance” in the Netherlands.

ECJ: The barrier does not have to be insurmountable

The European Court of Justice ruled that a work in the public domain in certain EU member states may be published online there free of charge, even though it is still protected elsewhere. This is subject to the condition that an effective technical measure is in place to exclude users from the country where the work is protected. State-of-the-art geoblocking may suffice (ECJ, judgment of July 9, 2026, Case No. C-788/24, Anne Frank Fonds).

The fact that a geographic restriction can be circumvented using a VPN does not automatically render it ineffective. EU law does not require a measure to be completely insurmountable. The decisive factor is whether the provider takes technically reasonable steps to prevent the content from being directed at the public in the protected country.

What the Ruling Means for Online Providers

The decision does not apply only to historical texts. Digital archives, publishers, libraries, and streaming services may also face territorially varying terms of protection. Anyone who makes a work available online must check in which countries rights still exist and implement technically effective access restrictions in those countries. We regularly address issues related to the protection of creative works in our copyright section.

Inadequate or outdated geoblocking may still result in copyright infringement. In such cases, liability generally rests with the person or entity that made the work available online, not with the VPN service provider.

A Workable Solution on the Internet

The ruling balances free access to works in the public domain with the protection of existing copyrights. Online publications do not have to be withheld simply because of every theoretical possibility of circumvention. However, a purely symbolic country block is not sufficient.