Geoblocking measures enough to forestall a “communication to the general public”? The CJEU will get a second likelihood – Tech Cyber Web

As soon as once more, the Courtroom of Justice of the European Union (CJEU) has been requested to offer readability on the idea of “communication to the general public” as laid down in article 3 of the 2001 Copyright within the Data Society Directive (InfoSoc Directive). On 20 September 2024, the Dutch Supreme Courtroom referred preliminary inquiries to the CJEU concerning the authorized implications of geoblocking within the context of the proper to communication to the general public.

The info that led to those preliminary questions are as follows. The plaintiff is the ‘Anne Frank Fonds’ (Fonds), which holds copyright on components of Anne Frank’s diary within the Netherlands. In a number of different international locations, together with Belgium, the copyright on the diary has already expired (hereafter: “public area international locations”). The defendants on this case, which embrace the ‘Anne Frank Stichting’ (Stichting), commissioned the Huygens Instituut voor Nederlandse Geschiedenis (Huygens ING) to conduct scientific analysis on the works of Anne Frank.  The outcomes of the analysis embrace copyright related reproductions of the Fonds’ related works.  The Stichting et al printed the outcomes on a Belgian web site that isn’t accessible from the Netherlands as a result of geoblocking measures. Nevertheless, that web site is accessible from the general public area international locations.

The central concern for the Dutch Supreme Courtroom is whether or not the making accessible of the works by Stichting et al on a Belgian web site, even when geoblocked, nonetheless constitutes a communication to the general public within the Netherlands, provided that customers can circumvent this geoblocking measure by utilizing a digital non-public community (VPN) or comparable service.

The preliminary questions on territoriality and geoblocking

The questions referred on this regard by the Dutch Supreme Courtroom are the next.

First, whether or not article 3(1) InfoSoc Directive ought to be interpreted to imply that the making accessible of a piece on the web can solely be considered a communication to the general public in a specific nation if the publication is addressed to the general public in that nation. If so, the Dutch Supreme Courtroom desires to know what components ought to be taken into consideration on this evaluation.

The second preliminary query is whether or not a celebration publishing a piece on-line is making a communication to the general public in a sure nation, even when a geographical entry blocking measure is employed which in precept prevents entry to the web site from an IP handle in that nation in order that customers can solely circumvent the blocking measure with the assistance of a VPN or comparable service. Once more, the Dutch Supreme Courtroom moreover asks for the components that ought to be taken into consideration right here.

Lastly, the third preliminary query pertains to the potential legal responsibility of the VPN supplier, within the occasion that it’s thought of that circumventing the blocking measure quantities to communication to the general public within the blocked nation. On this regard, the Dutch Supreme Courtroom asks whether or not the communication is made by the get together who printed the work on the web, although entry to that communication requires the intervention of the VPN supplier or an identical service.

Earlier case regulation

The main focus of this part is preliminary questions one and two. To know these questions it’s essential to discover associated problems with territorial copyright, geoblocking and VPNs. These subjects have already been examined by Advocate Common (AG) Szpunar in his 2022 Opinion in Case 423/21 – Grand Manufacturing v. GO4YU. Nevertheless, as that case was dismissed, the Courtroom didn’t have the chance to handle these questions in a judgment. Subsequently, the Dutch Supreme Courtroom’s referral presents a contemporary alternative for the CJEU to make clear these points.

As a place to begin, article 3 InfoSoc Directive grants authors an unique proper of communication to the general public of their work, together with the proper to make accessible e.g. within the on-line setting. This proper just isn’t topic to exhaustion and, because the CJEU has repeatedly emphasised, is of preventive nature.

Over the previous few many years, the CJEU has delivered a number of judgments that make clear how this text ought to be interpreted, together with in regard to posting copyright protected work on the web. For example, beginning in 2014 with Svenssonthe CJEU delivered a number of judgments on hyperlinking as a type of communication to the general public. Many of those circumstances handled situations of linking by third events to content material positioned on a web site by or with the permission of the rightsholder.

Nevertheless, aside from the dismissed case of Grand Manufacturing v. GO4YUnone of those circumstances handled the affect of digital measures like geoblocking and VPNs on the interpretation of the idea of communication to the general public. Article 6 InfoSoc Directive in flip makes it potential to make use of technological safety measures to limit entry to protected works. This may increasingly have authorized penalties, together with with regard to the definition of the idea of ‘communication to the general public’. In his Opinion in Grand ManufacturingAG Szpunar utilized prior hyperlinking case regulation by analogy to geoblocking, when answering the query whether or not a communication to the general public takes place if copyright protected work is restricted by geoblocking measures (see additionally Synodinou 2023).

In brief, AG Szpunar famous that the intention of the get together making the communication determines the circle of individuals focused by the communication to the general public (following Svensson, paras 27–28).  The intention ought to be inferred from the way in which during which that get together makes the content material accessible. Right here, the one indication is the technical measures taken by the get together to restrict accessibility (see additionally VG image artwork, para. 40). A publicly accessible web site is focused in any respect web customers, whereas a web site secured by entry restrictions is focused solely at individuals who’ve gained lawful entry to it (Svensson para. 27 and 31).

The AG then argues that this method will also be utilized within the Grand Manufacturing case. If the copyright holder (or its licensee) has utilized geoblocking measures, the protected content material is focused solely on the circle of individuals accessing that content material from the territory the place entry just isn’t blocked by the copyright holder. Subsequently, the copyright holder doesn’t talk that content material to the general public in different territories (para. 36 of the Opinion).

Implications for the current case

It stays to be seen whether or not the CJEU will apply this reasoning to the current case, since Grand Manufacturing concerned totally different info from these at concern right here. Grand Manufacturing considerations geoblocking measures imposed by the copyright holders themselves, within the state of affairs the place the communication to the general public on a web site was by the copyright holders or with their consent. The current case, nevertheless, considerations an unique communication to the general public by a 3rd get together with out consent of the copyright holder. It’s moreover necessary to notice that within the current case, there isn’t any copyright safety within the territory of the general public area international locations the place the work is made accessible. One may subsequently argue that no consent is required in that territory as a result of no copyright subsists there. In fact, consent can be wanted within the territory the place the work continues to be protected by copyright (The Netherlands), the place entry is topic to geoblocking measures. Right here, the uncertainty round how that pertains to the circumvention of geoblocking comes into focus.

AG Szpunar admits in his Opinion that geoblocking measures could be circumvented and that this could possible by no means be absolutely counteracted via technical or different measures (para. 38 of the Opinion). The AG, nevertheless, doesn’t wish to draw the conclusion from this that there’s all the time a communication to the general public of a piece in a territory although entry to it’s being geoblocked there. That will make managing copyright on the web on a territorial foundation inconceivable, as in precept any communication of a piece to the general public on the web would then be world (para. 39 of the Opinion).

Conclusion

The CJEU has a possibility (ultimately) to handle the unexplored intersection of geoblocking and communication to the general public. The Dutch Supreme Courtroom has referred three preliminary questions on this matter. In Grand ManufacturingAG Szpunar already expanded on how CJEU case regulation ought to be interpreted to reply the primary two questions. Nevertheless, as a result of that case by no means made it to judgment, it stays unclear whether or not his views will likely be adopted by the courtroom. The third query raises the fascinating concern of whether or not the get together who facilitates the circumvention of the geoblocking measure will also be held liable. The consequences of geoblocking on the evaluation of the proper of communication to the general public pose fascinating challenges for the CJEU, notably given their potential implications for the territoriality of copyright within the digital setting.