The Anne Frank Fonds and the limits of copyright online

On 9 July 2026, the Court of Justice of the European Union (hereinafter: "the Court" or "CJEU") delivered its judgment in the Anne Frank Fonds case, answering preliminary questions concerning copyright and geo-blocking. The Court ruled that a work protected in one Member State may lawfully be published online in another Member State where that work is no longer protected and has entered the public domain. This does require the website operator to use state-of-the-art geo-blocking. The ruling touches on the territoriality of copyright. This blog examines what the judgment entails, how territoriality functions within copyright, and what this means for website operators whose content is accessible worldwide.

The case

The diary of Anne Frank and the accompanying manuscripts are copyright-protected works, of which the Anne Frank Fonds is the rightsholder. In the Netherlands, this copyright remains valid until 2037. This extended term of protection stems from a transitional provision in the Dutch Copyright Act: under the previous regime, works first published after the death of the author enjoyed a separate term of 50 years from that first publication. Parts of the diary were not published until 1986; on the basis of the transitional law, the term for those parts still runs until 2037. In many other EU Member States, such as Belgium, the term of protection has since expired and the works have entered the public domain. In those countries, the Anne Frank Fonds can therefore no longer oppose publication.

At the initiative of, among others, the Anne Frank Stichting and the Royal Netherlands Academy of Arts and Sciences, a scholarly online edition of the manuscripts was published in 2021. The domain name of the website hosting these works was registered in Belgium. For visitors from the Netherlands and other Member States where the works were still protected, a geo-block was in place, preventing them from accessing the website. Visitors based in the Netherlands who tried to reach the site were met with an error message. In practice, however, this geo-block proved relatively easy to circumvent using a VPN connection. The Anne Frank Fonds therefore argued that its copyright was nonetheless being infringed, because the works remained accessible from the Netherlands, albeit only via a VPN.

The ruling

The Court did not accept this line of reasoning and held that the geo-block constitutes a "technological measure" within the meaning of Article 6(3) of the Copyright Directive. This provision offers rightsholders an additional layer of protection when they employ technical measures to prevent unauthorised access to a work, such as DRM on an e-book, a paywall, a login screen or a geo-block. However, this legal protection applies only to "effective" measures. Where a rightsholder deploys an effective measure, users who are excluded by that measure do not form part of the intended public, and there is therefore no copyright-relevant "communication to the public" in relation to them.

According to the Court, a geo-block can qualify as effective as long as it is "state of the art", even where circumvention via a VPN remains possible. The underlying rationale is that, by employing such a measure, the rightsholder makes clear that they wish to restrict the circle of users to visitors from countries where the work is no longer protected. This aligns with earlier case law in which the Court held that technological measures may serve as an expression of the rightsholder's intent.

The Court also addresses the question of liability where the geo-block is not effective. In that case, liability rests with the party who placed the work online, and not with the provider of the VPN service that technically enables the circumvention. A mere warning or click-through declaration on the website ("I declare that I am located in country X") does not, according to the Court, constitute an effective measure, since its operation depends entirely on the honesty of the visitor.

The principle of territoriality

To appreciate the significance of this ruling, it is useful to consider a fundamental feature of copyright: the principle of territoriality. Copyright is, in principle, granted on a country-by-country basis, on the basis of the national legislation of each country. There is therefore no such thing as a "worldwide copyright". Instead, there is a patchwork of national rights that can differ per country. International treaties such as the Berne Convention and the WIPO Copyright Treaty ensure mutual recognition to a certain extent. Works created in state A are, in principle, also protected in state B, but according to the law of state B.

European Union

Within the European Union, copyright has been partially harmonised through, among other instruments, the Copyright Directive. That directive lays down core concepts such as "work", "communication to the public" and "reproduction", ensuring that these concepts are interpreted uniformly across the EU. However, there is no full harmonisation of, for example, the term of protection. Dutch copyright law provides for a term of 70 years after the death of the author, but transitional rules and historical particularities may lead to differing rules in other EU Member States. This is precisely why the diary of Anne Frank and the accompanying manuscripts remain protected in the Netherlands until 2037, while in Belgium they have already entered the public domain. The Anne Frank Fonds ruling is therefore a striking illustration of how territoriality can lead to divergent outcomes even within a harmonised EU framework.

Under the principle of lex loci protectionis, codified within the EU in the Rome II Regulation, the question of whether an act constitutes an infringement is assessed under the law of the country for which protection is claimed. For content published from the Netherlands on a globally accessible website, the position in each country can therefore, in principle, be assessed separately under that country's national law.

Outside the European Union

For content that is accessible worldwide, the picture becomes more complex. Could, for example, an American, Brazilian or Japanese rightsholder bring a claim against a Dutch website operator simply because their content is visible there? This question falls into two parts: a substantive question and a procedural question.

The substantive question is whether the act constitutes an infringement under the law of the country in question. Outside the EU, courts do not apply Rome II but instead rely on their own rules of private international law. In practice, this often leads to comparable starting points, partly because the principle of territoriality is also enshrined in the Berne Convention. The copyright assessment may therefore differ per country, meaning that an act that is permitted under Dutch law may still amount to an infringement elsewhere. A striking example is the difference in copyright exceptions between the United States and the European Union. The US operates the fair use doctrine: an open norm under which courts determine, on the basis of factors such as the purpose, nature and extent of the use, whether an act is permissible. The EU, by contrast, applies a closed system in which only the exceptions listed in the directives are permitted.

The procedural question is whether a foreign court has jurisdiction, and whether any resulting judgment can be enforced in the Netherlands. Within the EU, this is relatively straightforward under the Brussels I bis Regulation. For countries outside the EU, however, a foreign judgment cannot automatically be enforced in the Netherlands. A separate recognition procedure must then be followed, the outcome of which depends on any applicable treaties and on the national rules of private international law. In practice, this is far from straightforward.

That does not mean, however, that the risk of foreign claims is negligible. A rightsholder may also litigate in the Netherlands on the basis of foreign law. A foreign claim may also result in reputational damage, or a platform (such as a hosting provider or app store) may take down content on the basis of a foreign notification, regardless of whether the underlying judgment is enforceable here. This can lead to difficult situations in which a globally accessible website hosts content that is not protected under the law of its country of origin, but nevertheless faces a claim from a rightsholder in another country.

What does this mean in practice?

The Anne Frank Fonds ruling makes clear that the principle of territoriality has practical consequences within copyright law. For website operators whose content is accessible worldwide, this means that the copyright status of a work can differ per country, and that something permitted in the Netherlands may still amount to an infringement elsewhere.
For organisations that publish their own content online, for example photos, texts or videos, it is important to know in advance where that content comes from and what rights attach to it. For content sourced from stock libraries, it is worth checking for which countries and forms of use the licence applies. For content from individual creators, it is advisable to make clear written agreements about the scope of use.

For platforms hosting third-party content, the challenge lies elsewhere. Such platforms are, in principle, not themselves liable for user uploads, provided they meet their duty of care, but they are expected to address infringing content and to take notifications seriously. What amounts to an infringement in one country may fall under an exception in another. For internationally operating platforms, this means that content moderation policies and notice-and-takedown procedures must take these differences into account. Where the copyright status of content differs per country, geo-blocking can moreover be a practical tool to make content selectively available, provided that the measure is state of the art. A click-through declaration or disclaimer, according to the Court, decidedly does not suffice.

Would you like to discuss the copyright implications of international content distribution, your licensing structure, or the design of your moderation policy? Please feel free to get in touch.