The Anne Frank manuscripts case: Geo-blocking is a suitable means of safeguarding copyright
The highly topical case in the Netherlands shows that copyright protection in the digital age still raises questions whose answers are not always clear. In the preliminary decision of the Amsterdam Law Bank of 01 February 2022 (Ref.: C/13/710961 /KG ZA 21-1010), the question was now whether geo-blocking is sufficiently suitable for the protection of copyright of the owner.
The case was brought by the Swiss-based Anne Frank Fund against the Dutch-based Anne Frank Foundation and the Royal Netherlands Academy of Sciences (KNAW), and the Association for Research and Accessibility of Historical Texts based in Belgium.
The Anne Frank Fund was founded in 1963 by Otto Frank, the father of Anne Frank. When he died in 1980, the Fund became his sole heir based on Otto Frank’s will. This included the copyright to Anne Frank’s manuscripts, which were published in several editions, including the “Diary of Anne Frank”. In contrast, the physical works were bequeathed to the then National Institute for War Documentation, which is now part of the KNAW.
Back in 2015, the Anne Frank Fund brought an action against the Anne Frank Foundation and the KNAW for an injunction against infringement of its copyright after the defendants and Huygens ING, which had conducted research on parts of the manuscripts on behalf of the Anne Frank House, announced that they would publish the research results. The judgment of 23 December 2015 (Case C/13/583257 /HA ZA 15-270) shows that the Fund’s copyright in the disputed parts of the manuscripts expired in some countries on 1 January 2016, but that in the Netherlands it will continue to exist until 1 January 2037, so that the Anne Frank House undertook not to publish the works and research results without the Fund’s permission until the Fund’s copyright expires in the Netherlands. Due to the existing copyright law in the country, further research was carried out in Belgium, as there is no longer any copyright protection on the manuscripts in the region.
In September 2021, these documents were published digitally by the Belgian association. They are fully accessible on www.annefrankmanuscripten.org in 60 countries. The association is the owner of the domain name. Access in the Netherlands was restricted by means of geo-blocking. The Anne Frank Fund is now of the opinion that the use of geo-blocking would not sufficiently prevent access in the Netherlands. It was possible to circumvent the blocking by means of a VPN connection without great effort and thus acquire the content in the Netherlands. The opposing party countered that the website was explicitly not aimed at the Netherlands and was based on a Belgian URL, so that copyright was protected on Dutch soil. The aim of the publication was to communicate scientific findings to the general public in order to honour the memory of Anne Frank and the Second World War.
In short: What is geo-blocking?
Geo-blocking is a technique used by a website provider to block certain content regionally. Providers of goods or services can find out in various ways which country their customers come from. For example, an online merchant can identify a foreign buyer by the address, the debit or credit card used for payment, the IP address or the telephone number and thus block his website or change his prices and conditions. This means that a website can be accessible in one country, for example Germany, but not in another country such as the Netherlands.
Within the EU, this practice has been banned in principle. The so-called Geo-blocking Regulation (EU)2018/302 aims to remove obstacles to the functioning of the digital single market and to strengthen the free movement of goods and services. Every EU citizen should be able to shop in any Member State under the conditions of the customers residing there (shop-like-a-local principle). The Regulation thus specifies the prohibition of discrimination contained in Article 20 of the Services Directive 2006/123/EC.
However, the provisions of the Regulation do not apply if European law provisions or provisions of national law compatible with European law conflict with the prohibition of geo-blocking. The Directive itself explicitly states that geo-blocking is possible in the case of copyright, in particular where the Copyright Directive 2001/29/EC is applicable. This is to ensure that neither the copyright of an owner is infringed, nor the user of the works concerned is disproportionately restricted in his activity.
The court now provisionally ruled that copyright was not infringed by the publication of the manuscripts and the research results. In particular, the blocking of the website to the Netherlands by geo-blocking is an appropriate means of safeguarding the Fund’s copyright in the documents.
The geo-blocking sufficiently ensured that the website was not accessible in the Netherlands. If an Internet user in the region calls up the website, a message appears stating that access is denied on copyright grounds. If he tries it in another country, the user must first go through an access control before he can view the content.
The fact that the block can be circumvented by means of a VPN connection does not reduce the effectiveness of the measure. This is because the Fund has not made it sufficiently plausible that the VPN connection is used by an undetermined number of users and that the website is opened to the large mass of the public in the Netherlands. According to the court, the defendants have done everything in their power to comply with the copyright law still in force in the Netherlands. The website is only accessible to those countries where the Fund’s copyright had already expired at the beginning of 2016.
Also, copyright is never absolute. Thus, in the digital environment in particular, an appropriate balance must be struck between the interests of the copyright holder on the one hand and the interests and fundamental rights of the user on the other, particularly freedom of knowledge. The court refers to recitals 3 and 31 of the Copyright Directive and the judgment of the ECJ of 2 June 2021 E-CLI:EU:C:2021:503. The Fund has not made a credible case that it has suffered damage as a result of the publication. It is undisputed that the documents have been published several times before. Nor are the defendants pursuing any commercial objectives. It should also be emphasized that if the action were to be upheld, all internet users in all PD countries would be denied the possibility of lawful access to the results of scientific research. This cannot be considered proportionate. The defendants are therefore not taking copyright-relevant actions in the Netherlands.
The application of geo-blocking has widely varying effects on an international level. For example, it can create a feeling of disadvantage for some internet users. Within the European Union in particular, the use of the method has the potential to cause disputes, which the EU regulation is intended to help mitigate.
On the other hand, the dispute over the Anne Frank manuscripts shows that the method can be an appropriate solution regarding the protection of copyright against infringement. The European legislator has deliberately included the exception in the regulation, especially about digital media and streaming services, as copyright is not limited to the national level.