How Copyright Litigation Over Anne Frank’s Diary Could Impact The Fate Of VPNs In The EU

“The Diary of a Young Girl” is a Dutch language diary written by the young Jewish writer Anne Frank while she was in hiding for two years with her family during the Nazi occupation of the Netherlands. Although the diary and Anne Frank’s death in the Bergen-Belsen concentration camp are well known, few are aware that the text has a complicated copyright history – one that could have important implications for the legal status and use of Virtual Private Networks (VPNs) in the EU. TorrentFreak explains the copyright background:

These copyrights are controlled by the Swiss-based Anne Frank Fonds, which was the sole heir of Anne’s father, Otto Frank. The Fonds states that many print versions of the diary remain protected for decades, and even the manuscripts are not freely available everywhere.

In the Netherlands, for example, certain sections of the manuscripts remain protected by copyright until 2037, even though they have entered the public domain in neighboring countries like Belgium.

A separate foundation, the Netherlands-based Anne Frank Stichting, wanted to publish a scholarly edition of Anne Frank’s writing, at least in those parts of the world where her diary was in the public domain:

To navigate these conflicting laws, the Dutch Anne Frank Stichting published a scholarly edition online using “state-of-the-art” geo-blocking to prevent Dutch residents from accessing the site. Visitors from the Netherlands and other countries where the work is protected are met with a clear message, informing them about these access restrictions.

However, the Anne Frank Fonds was unhappy with this approach, and took legal action. Its argument was that such geo-blocking could be circumvented with VPNs, and so its copyrights in the Netherlands could be infringed upon by those using VPNs. The lower courts in the Netherlands dismissed this argument, and the case is now before the Dutch Supreme Court. Beyond the specifics of the Anne Frank scholarly edition, there are important issues regarding the use of VPNs to get around geo-blocking. Because of the potential knock-on effect the ruling in this case will have on EU law, the Dutch Supreme Court has asked for guidance from the EU’s top court, the Court of Justice of the European Union (CJEU).

The CJEU has yet to rule on the issues raised. But one of the court’s advisors, Advocate General Rantos, has published a preliminary opinion, as is normal in such cases. Although that advice is not binding on the CJEU, it often provides some indication as to how the court may eventually decide. On the main issue of whether the ability of people to circumvent geo-blocking is a problem, Rantos writes:

the fact that users manage to circumvent a geo-blocking measure put in place to restrict access to a protected work does not, in itself, mean that the entity that put the geo-blocking in place communicates that work to the public in a territory where access to it is supposed to be blocked. Such an interpretation would make it impossible to manage copyright on the internet on a territorial basis and would mean that any communication to the public on the internet would be global.

Moreover:

As the [European] Commission pointed out in its written observations, the holder of an exclusive right in a work does not have the right to authorise or prohibit, on the basis of the right granted to it in one Member State, communication to the public in another Member State in which that right has ceased to have effect.

Or, more succinctly: “service providers in the public domain country cannot be subject to unreasonable requirements”. That’s a good, common-sense view. But perhaps just as important is the following comment by Rantos regarding the use of VPNs to circumvent geo-blocking:

as the Commission points out in its observations, VPN services are legally accessible technical services which users may, however, use for unlawful purposes. The mere fact that those or similar services may be used for such purposes is not sufficient to establish that the service providers themselves communicate the protected work to the public. It would be different if those service providers actively encouraged the unlawful use of their services.

That’s an important point at a time when VPNs are under attack from some governments because of concerns about possible copyright infringement by those using them.

The hope has to be that the CJEU will agree with its Advocate General’s sensible and fair analysis, and will rule accordingly. But there is another important aspect to this story. The basic issue is that the Anne Frank Stichting wants to make its scholarly edition of Anne Frank’s diary available as widely as possible. That seems a laudable aim, since it will increase understanding and appreciation of the young woman’s remarkable diary by publishing an academically rigorous version. And yet the Anne Frank Fonds has taken legal action to stop that move, on the grounds that it would represent an infringement of its intellectual monopoly in some parts of Frank’s work, in some parts of the world. The current dispute is another clear example of how copyright has become for some an end in itself, more important than the things that it is supposed to promote.

Follow me @glynmoody on Mastodon and on Bluesky. Republished from Walled Culture.