The Dutch Supreme Court has requested guidance from the EU's top court on geo-blocking, VPNs, and copyright in a case involving the online publication of Anne Frank's manuscripts. The CJEU's response has the potential to reshape the online content distribution landscape, impacting streaming platforms and other services that rely on geo-blocking. VPNs services will monitor the matter with great interest too.
The Diary of Anne Frank is one of the best known literary works in history, written by a young girl hiding from the Nazis in Amsterdam during World War II.
Anne Frank died in 1945, but her legacy lives on though her words, which are a powerful testament to the resilience of the human spirit and a reminder of the horrors of the Holocaust.
Anne never saw her diary in printed form, as the first copies were published by her father Otto Frank in 1947. Since then, it’s been translated into more than 70 languages, selling more than 30 million copies around the world.
In 1963, Otto Frank established the “Anne Frank Fonds” in Switzerland and appointed it as his sole heir. This organization now owns the copyrights, over which it works hard to maintain control. According to the organization, the original print versions will remain protected for many decades.
The Anne Frank Copyright Battle
While early versions are presumably in the public domain in several countries, the original manuscripts are protected by copyright in the Netherlands until 2037. As a result, the copies published by the Dutch Anne Frank Stichting, are blocked for Dutch visitors.“The scholarly edition of the Anne Frank manuscripts cannot be made available in all countries, due to copyright considerations,” is the message disallowed visitors get to see.
This blocking effort is the result of a copyright battle. Ideally, Anne Frank Stichting would like to make the manuscripts available worldwide, but the Swiss ‘Fonds’ has not given permission for it to do so. And since some parts of the manuscript were first published in 1986, Dutch copyrights are still valid.
In theory, geo-blocking efforts could alleviate the copyright concerns but, for the Fonds, these measures are not sufficient. After pointing out that people can bypass the blocking efforts with a VPN, it took the matter to court.
Does Geo-blocking Protect Copyrights?
Around the world, publishers and streaming services use geo-blocking as the standard measure to enforce geographical licenses. This applies to the Anne Frank Stichting, as well as Netflix, BBC iPlayer, news sites, and gaming platforms.The Anne Frank Fonds doesn’t dispute this, but argued in court that people can circumvent these restrictions with a VPN, suggesting that the manuscripts shouldn’t be published online at all.
The lower court dismissed this argument, stating the defendants had taken reasonable measures to prevent access from the Netherlands. The Fonds appealed, but the appeal was also dismissed, and the case is now before the Dutch Supreme Court.
The Fonds argues that the manuscript website is (in part) directed at a Dutch audience. Therefore, the defendants are making the manuscripts available in the Netherlands, regardless of the use of any blocking measures.
The defendants, in turn, argue that the use of state-of-the-art geo-blocking, along with additional measures like a user declaration, is sufficient to prevent a communication to the public in the Netherlands.
The defense relied on the opinion in the GO4YU case, which suggests that circumventing geo-blocking with a VPN does not constitute a communication to the public in the blocked territory, unless the blocking is intentionally ineffective.
VPN and Geo-Blocking Questions for EU Court
Before the Dutch Supreme Court goes ahead with the case, it has referred three key questions to the Court of Justice of the European Union (CJEU). It seeks clarification on how to interpret blocking and VPN use, in the context of Article 3(1) of the Copyright Directive.Firstly, the Dutch Supreme Court asks the EU Court whether there can only be a “communication to the public” if a website is directed at that country. And if so, what does this ‘direction’ entail precisely.
The second question is whether there’s a “communication to the public” in a country where state-of-the-art geo-blocking measures, and potentially other restrictive measures are in place, yet may face circumvention with a VPN.
Finally, if the EU Court concludes that blocking measures are not sufficient because they can be bypassed with a VPN, does this automatically mean that the publisher is violating copyright law?
Or, in the translated words of the court:
Far Reaching Consequences
On paper, the Anne Frank copyright battle is already controversial. However, this case could also have far-reaching consequences for many other sites and services that publish geographically-restricted content.If state-of-the-art geo-blocking is not sufficient to alleviate copyright concerns, rightsholders can in theory go after publishers and platforms that use this technology. That applies to many large streaming services, and would make geographical licenses impossible to enforce.
Of course, most rights holders are already well aware of the geo-blocking weaknesses. They willingly accept this weakness in favor of geographical restrictions, which are often used to optimize profits.
That said, the ruling will also be important for VPN companies, many of which sell region unblocking as a feature. If the EU’s highest court decides that this is a key factor in copyright enforcement, that type of advertising could become problematic.
As for this specific situation, there’s a lot at stake as well. The manuscripts are important for research purposes, and broader access would help facilitate that. While opinions on copyright matters differ, everyone should strive to do good. Or as Anne Frank wrote:
“How noble and good everyone could be if, at the end of each day, they were to review their own behavior and weigh up the rights and wrongs. They would automatically try to do better at the start of each new day and, after a while, would certainly accomplish a great deal.”
ORIGINAL IDEA DO NOT STEAL 