Opinion of the Advocate General — ECLI:EU:C:2026:12
Date: 2026-01-15
Language of the case: Dutch

Summary C-788/24 – 1 
Case C-788/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
14 November 2024 
Referring court:  
Hoge Raad der Nederlanden (Netherlands) 
Date of the decision to refer:  
8 November 2024 
Applicant:  
Anne Frank Fonds 
Defendants:  
Anne Frank Stichting 
Koninklijke Nederlandse Akademie van Wetenschappen 
Vereniging voor Onderzoek en Ontsluiting van Historische Teksten 
  
Subject matter of the main proceedings 
The main proceedings concern an action for interim relief brought by the applicant 
against the defendants following the publication of a new scholarly online edition 
of the diary of Anne Frank on a website of the Vereniging voor Onderzoek en 
Ontsluiting van Historische Teksten (Association for Research and Access to 
Historical Texts) (‘the Association’). By that action, the applicant sought an 
injunction against the alleged infringement of its copyright in that diary. 
Subject matter and legal basis of the request 
Request for a preliminary ruling under Article 267 TFEU on the interpretation of 
Article 3(1) of Directive 2001/29/EC of the European Parliament and of the 
Council of 22 May 2001 on the harmonisation of certain aspects of copyright and 
related rights in the information society (‘the Copyright Directive’). 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-788/24 
 
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Questions referred for a preliminary ruling 
(1) Is Article 3(1) of the Copyright Directive to be interpreted as meaning 
that the publication of a work on the internet is only to be regarded as a 
communication to the public in a particular country if the publication 
is addressed to the public in that country? If so, what factors must be 
considered in assessing that? 
(2) Can there be a communication to the public in a particular country if, 
by means of (state-of-the-art) geo-blocking, it is ensured that the 
website on which the work is published can only be accessed by the 
public in that country by circumventing the blocking measure using a 
VPN or similar service? Is the extent to which the public in the 
blocked country is willing and able to access the website in question 
via such a service of relevance in that respect? In answering this 
question, does it make any difference whether, in addition to the 
measure of geo-blocking, other measures were taken to impede or 
discourage public access to the website in the blocked country? 
(3) If the possibility of circumventing the blocking measure entails the 
communication of the work published on the internet to the public in 
the blocked country within the meaning of Article 3(1) of the 
Copyright Directive, is that communication made by the party who 
published the work on the internet, even though knowledge of that 
communication requires the intervention of the provider of the VPN or 
similar service in question? 
Provisions of European Union law relied on 
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 
2001 on the harmonisation of certain aspects of copyright and related rights in the 
information society: Article 3(1). 
Provisions of national law relied on 
Auteurswet (the Law on copyright) (‘Aw’): Articles 1 and 12. 
Succinct presentation of the facts and procedure in the main proceedings 
1 At issue in the summary proceedings is the publication of a new scholarly online 
edition of the diary of Anne Frank on a website of the Association. Parts of 
versions A and B of this diary (‘the work’) are copyrighted by the Anne Frank 
Fonds (Anne Frank Fund) (‘the Fund’) in the Netherlands until 2037. In a large 
number of public domain (‘PD’) countries, including Belgium, this copyright has 
already expired. 
ANNE FRANK FONDS 
 
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2 The Fund was founded by Otto Frank, the father of Anne Frank, and was named 
the latter’s heir by will. On his death, the Fund became the rightful owner of the 
copyrights to the works of Anne Frank belonging to Otto Frank. 
3 Otto Frank bequeathed Anne Frank’s physical works, including manuscripts of the 
diaries, to the then National Institute for War Documentation, now part of the 
Royal Netherlands Academy of Arts and Sciences KNAW (‘KNAW’), an 
umbrella body whose members include the Huygens Institute for the History of 
the Netherlands (‘Huygens ING’). 
4 The Anne Frank Stichting (Anne Frank Foundation) (‘the Foundation’) was 
founded with the aim of maintaining the Anne Frank House in Amsterdam and 
spreading the ideals bequeathed to the world in the diary of Anne Frank. The 
physical diaries of Anne Frank have been given on loan to the Foundation. 
5 The Association is a non-profit association incorporated in Belgium on 29 July 
2021. According to its Articles, its disinterested aim is to research and provide 
access to historical texts in all forms and media, digital or otherwise. Members 
and directors of the Association can only be nominated by the Foundation and 
Huygens ING. 
6 The Fund and the Foundation have jointly commissioned two facsimiles of the 
manuscripts of Anne Frank’s diaries for the purpose of scholarly research. To that 
end, digital scans of the manuscripts were made. The facsimiles were ready in 
2002 and the Fund and the Foundation each possess a copy of them. 
7 In 2008, at the invitation of the Foundation, Huygens ING began a scholarly study 
of the works of Anne Frank. For that purpose, it was provided with the 
Foundation’s facsimile and created an encrypted digital file of the manuscripts 
based on those scans. The Fund commenced proceedings on the merits in the 
rechtbank Amsterdam (District Court, Amsterdam, the Netherlands), seeking to 
prohibit the Foundation and the KNAW from infringing its copyrights. This claim 
was dismissed by irrevocable judgment of 23 December 2015 
(NL:RBAMS:2015:9312). 
8 On 28 September 2021, the Foundation and Huygens ING announced in a press 
release the launch of a new scholarly online edition of all Anne Frank 
manuscripts. With specific reference to copyright, this press release states as 
follows: ‘Because the copyright to a number of Anne Frank’s texts has not yet 
expired in the Netherlands, part of the research […] took place in Belgium. The 
online scholarly edition is only accessible in those countries where the copyright 
law on Anne Frank’s Texts so admits. In Belgium, […] this edition is available to 
everyone online […]. Through geo-blocking the availability is limited to those 
countries.’ 
9 The full text of the scholarly edition was then published on the website. Those 
visiting it from the Netherlands will see the message ‘Access denied’ with an 
explanation that the online edition of the manuscripts cannot be made available in 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-788/24 
 
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all countries for copyright reasons. Those accessing the website from a PD 
country will see the message ‘Access Check’. Below that message, which lists the 
PD countries, is a green box and a red box, one of which the user must click on. 
The green box reads: ‘Yes, I am consulting the website from one of the [PD 
countries]’, and the red: ‘No, I am accessing the website from another country.’ 
Users clicking on red will be denied access to the website. 
10 The Fund considered that its copyrights were infringed by the publication of the 
manuscripts and served a summons on the defendants demanding that they 
confirm within three working days that they would cease and desist the copyright 
infringement, take the website offline, destroy all copies of Anne Frank’s 
manuscripts and pay damages. They did not comply with that summons. 
11 In summary proceedings before the Amsterdam District Court, the Fund sought an 
order that the defendants cease and desist from infringing the Fund’s copyrights in 
the diary of Anne Frank. This claim was dismissed on 1 February 2022 
(NL:RBAMS:2022:328) on the grounds that the defendants had done everything 
reasonably possible to block, or at least sufficiently impede and discourage, access 
to the website from the Netherlands, that they were not performing any acts 
relevant to copyright in the Netherlands and that therefore there was no copyright 
infringement in the Netherlands. On appeal, the Fund claimed that the gerechtshof 
Amsterdam (Court of Appeal, Amsterdam, the Netherlands) should order the 
defendants to cease and desist communication to the public in the Netherlands of 
the publication of certain versions of the manuscripts of Anne Frank, such that 
they would not be accessible in the Netherlands even with a VPN or proxy service 
or any other means of circumventing a geo-blockade. The Amsterdam 
Gerechtshof rejected the claim by judgment of 7 March 2023 
(NL:GHAMS:2023:542) on the following grounds. 
12 The parties do not dispute that parts of versions A and B of the diary of Anne 
Frank are still protected by copyright in the Netherlands until 2037. In many other 
PD countries, the deadline for that copyright protection expired in 2016. Thus, 
communication to the public of the full texts, including those parts that are still 
protected, in those PD countries does not infringe the Fund’s copyright, whereas 
communication of them to the public in the Netherlands does. 
13 In the opinion of the Gerechtshof, the Fund had wrongly argued that the 
defendants were in fact publishing the integral text of the diary by a circuitous 
route in the Netherlands. Publication on the website constitutes a communication 
to the public in Belgium. The defendants were aware that there would be interest 
in this from the Netherlands and that it would be easy to peruse the website from 
the Netherlands, thus creating an unauthorised communication to the public in the 
Netherlands. That is why they had employed geo-blocking. 
14 In his opinion in Grand Production v Go4yu (C-423/21, EU:C:2022:818), 
Advocate General Szpunar described the position of EU law in relation to geo-
blocking. He believes that the fact that geo-blockades can be circumvented cannot 
ANNE FRANK FONDS 
 
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lead to the protected work then being communicated to the public in the blocked 
area, as territorial management of copyright on the internet would then become 
impossible. The will of the entity making the communication to the public, as 
evidenced by the technical safeguards applied, determines to which audience the 
communication is addressed. This is only different if ineffective geo-blocking is 
deliberately employed. 
15 The Gerechtshof agreed with this approach and held that there was no 
intentionally inadequate blocking. The defendants had expressly stated in their 
press releases that access from the Netherlands was not allowed for copyright 
reasons. They had also demonstrated sufficiently that they had intended and 
implemented serious geo-blocking. The geographical shielding measures taken are 
sufficient so that there therefore is no communication to the public. 
The essential arguments of the parties in the main proceedings 
16 The Fund argues that the website does not need to be addressed to that country for 
there to be a communication to the public in the Netherlands. It is sufficient that 
the works are made available to an undetermined number of potential recipients 
and, moreover, a fairly large number of persons in the Netherlands, so that they 
are accessible to them. The fact that the public has to use a tool to do so does not 
preclude that. The focus of a website does not depend on the subjective will of the 
entity making the communication and the measures it has taken to make access to 
that website more difficult, but must be objectively determined by reference to 
(inter alia) the size of the public that, even in spite of the measures, has access to 
that website, and the extent to which that entity has made a deliberate intervention 
to communicate the protected works to the public. The Gerechtshof erred in 
disregarding the latter two elements and considering only the shielding measures 
taken. 
17 The defendants argue that the website is expressly not addressed to the public in 
the Netherlands and that they have taken sufficient (technical) protection measures 
so that there is no communication to the public in the Netherlands. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
18 Article 1 Aw provides: ‘Copyright is the exclusive right of [the] creator of a 
literary, scientific or artistic work, or of his assignees, to publish and reproduce it, 
subject to the limitations imposed by law.’ Article 12 Aw lists which acts (also) 
qualify as the publication of such a work. 
The right of disclosure is partly harmonised in Directive 2001/29/EC. Since 
making a work available via the internet falls within the scope of Article 3(1) of 
that directive, the concept of disclosure under Articles 1 and 12 Aw should be 
interpreted in accordance with that directive. 
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19 According to the established case-law of the Court of Justice (judgment of 22 June 
2021, Peterson v YouTube, C-682/18, EU:C:2021:503, paragraphs 63-65), the 
concept of ‘communication to the public’, within the meaning of that Article 3(1), 
includes any communication made to members of the public who are not present 
at the place where the communication originates. It should therefore extend to any 
such transmission or retransmission of a work to the public, by wire or wirelessly. 
At the same time, the Copyright Directive seeks to ensure a fair balance between, 
on the one hand, the interest of copyright holders in protecting their intellectual 
property rights and, on the other, the protection of the interests and fundamental 
rights of users of protected material, in particular their freedom of expression and 
information, as well as the public interest. Given the particular importance of the 
internet for freedom of expression and information, this equitable balance should 
also be sought in the interpretation and application of that directive. 
20 According to the case-law of the Court of Justice (judgment of 20 June 2024, 
GEMA, C-135/23, EU:C:2024.526, paragraphs 21-24 and 38, and the case-law 
cited therein), for there to be such a communication to the public, two criteria 
must be met. The act of communication must firstly relate to a work, and secondly 
it must be addressed to a public. An act of communication occurs when a person 
intervenes, in full knowledge of the consequences of his or her action, to give a 
member of the public access to a protected work, in particular when, in the 
absence of that intervention, that member of the public would in principle not 
have access to that work. The definition of ‘the public’ is satisfied only in the case 
of an indeterminate number of potential recipients and also a fairly large number 
of people. 
21 In the present case (i) the work is made available via the internet from a PD 
country, (ii) with state-of-the-art geo-blocking being used to ensure that the 
website cannot be accessed from a Dutch IP address, and (iii) the website 
includes, as an additional barrier, a statement to be completed by the user, as a 
result of which a user residing in the Netherlands who falsely completes that 
statement will be denied access to the website, so that (iv) the public in the 
Netherlands will only be able to access the website, and thus the work, if they use 
a VPN or proxy service and incorrectly complete the statement referred to under 
(iii). This raises the question of whether, in that case, a communication is made to 
the public in the Netherlands, in other words whether it is necessary for the 
communication to be addressed to that public, or whether the mere accessibility of 
the website on which the work is published, albeit via a circuitous route, is 
sufficient. Moreover, in the latter case (accessibility via a circuitous route), the 
question arises as to whether the communication is made by the website provider 
or by the VPN or proxy service. 
22 In Grand Production v GO4YU, the Advocate General (opinion of 20 October 
2022 in Case C-423/21, Grand Production v GO4YU, EU:C:2022:818, 
paragraphs 37-44) suggested that Article 3(1) of the Copyright Directive should 
be interpreted as meaning that the operator of a streaming platform transmitting a 
television programme on the internet does not infringe the exclusive right of 
ANNE FRANK FONDS 
 
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communication of works to the public where users bypass the geo-blocking by 
means of a VPN service. In his view, the fact that technical measures such as geo-
blocking will never be fully effective does not mean that an entity whose 
geographic blocking of access to a protected work is circumvented by users is 
communicating that work to the public in the blocked area. Otherwise, the 
territorial management of copyright on the internet would become impossible. The 
Advocate General considers that, according to the logic of the case-law of the 
Court of Justice, it is the will of the entity making the communication to the 
public, as evidenced by the technical measures adopted, which determines the 
public to which the communication is addressed. Thus, the ability to circumvent a 
geo-blockade does not in principle entail that entity communicating to the public 
in the blocked country. In his view, that is different only if that entity deliberately 
applies ineffective geo-blocking, in order in reality to allow persons outside the 
territory where it is entitled to communicate the work to the public to access it. 
23 The Court of Justice was unable to rule on this view of the Advocate General as 
the request for a preliminary ruling was withdrawn. Nevertheless, the present case 
appears to be sufficiently similar to that case to answer the questions at hand in a 
similar manner. After all, in both cases, it is the users themselves who bypass the 
geo-blockade. 
24 In the present case, the Gerechtshof also assumes that it is the will of the entity 
making the communication to the public, as evidenced by the technical measures 
adopted, that determines the public to which the communication is addressed. 
Such a criterion of focus can also be found in the case-law of the Court of Justice 
on trademark law, distribution law and database law, in which it has held that the 
mere accessibility of a website in a Member State does not make it an 
infringement of an intellectual property right invoked in that Member State. This 
requires that the website is intended for or addressed to the Member State 
concerned, where the will of the person performing the act may be relevant 
(judgments of 12 July 201l, L’Oréal v eBay, C-324/09, EU:C:2011:474, 
paragraphs 64-65; 21 June 2012, Donner, C-5/11, EU:C:2012:370, paragraphs 27 
and 30; 13 May 2014, Dimensione v Knoll, C-516/13, EU:C:2015:315, 
paragraph 30; and 18 October 2012, Football Dataco, C-173/11, EU:C:2012:642, 
paragraph 47). On the question of the jurisdiction of the court hearing the case, the 
Court of Justice held along the same lines (judgment of 27 April 2023, 
Watermaster, C-104/22, EU:C:2023:343, paragraphs 41-42, 48 and 54). In terms 
of the criteria for there to be a communication to the public, a corresponding 
approach argues that this requires deliberate intervention. Such an approach is 
further advocated by the fact that if the ability of the public in a given country to 
access a website (circumventing a geo-blockade) were sufficient to assume 
copyright infringement in that country, territorial management of copyright on the 
internet would be impossible. Publication of a work on the internet would then not 
be allowed as long as it was copyrighted in any country and the rightholder 
opposed publication in that country. That does not seem compatible with the 
equitable balance to be struck between the interest of copyright holders and the 
interests and fundamental rights of users of protected material. 
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25 By contrast, the use of a criterion of focus argues that it may result in the 
rightholder not being able to enforce his or her copyright fully in the country to 
which the publication is not addressed, in particular if the public in that country 
will in fact be able to peruse the work anyway. 
26 In that context, the question arises as to what factors should be used to determine 
whether a publication on the internet is addressed to a particular public. It is 
obvious that it is not the mere subjective will of the person undertaking the 
publication that is decisive, but also whether that person has taken sufficient 
measures to prevent the public for whom the publication is not intended from 
perusing it. It is conceivable that in a case such as the present one, which involves 
publication of a work that is free of copyright in a large number of countries and 
not in one or more others, the person publishing the work on the internet may be 
required to take all (technical) measures that are reasonably conceivable and 
feasible to prevent the public in the country or countries in which the work is still 
protected from perusing it (see, to this effect, judgments of 27 March 2014, UPC 
Telekabel Wien, C-314/12, EU:C:2014:192, paragraphs 62-63; 15 September 
2016, McFadden, C-484/14, EU:C:2016:689, paragraphs 95-96; and 
24 September 2019, Google v CNIL, C-507/17, EU:C:2019:772, paragraph 70). 
27 To the extent that those measures involve the use of geo-blocking, the question 
arises as to whether it is relevant in that regard to what extent the public today is 
willing and able to circumvent a geo-blockade by means of a VPN or similar 
service. If it is to be assumed that the possibility of circumventing the geo-
blocking entails communicating the work published on the website to the public in 
the blocked country, the question then arises as to whether that communication is 
made by the person who published the work on the internet or by the provider of 
the VPN or similar service in question.