VPNs, Copyright, and the Anne Frank Diary Dispute: A Looming EU Ruling

A legal battle surrounding the copyright of Anne Frank’s diary, and the leverage of VPNs to circumvent geo-blocking, is heading to the Court of Justice of the European Union (CJEU). The case, originating in the Netherlands, raises significant questions about copyright law in the digital age and the legality of using VPNs to access content.

The Copyright Landscape of “The Diary of a Young Girl”

“The Diary of a Young Girl” is a Dutch-language diary written by Anne Frank while she and her family were in hiding during the Nazi occupation of the Netherlands. While the diary and Anne Frank’s death in the Bergen-Belsen concentration camp are widely known, the complexities of its copyright status are less understood. The Swiss-based Anne Frank Fonds controls these copyrights, as it was the sole heir of Anne’s father, Otto Frank. The Fonds maintains that many print versions of the diary remain protected for decades, and even the manuscripts are not freely available everywhere.

In the Netherlands, certain sections of the manuscripts are protected by copyright until 2037, despite being in the public domain in neighboring countries like Belgium.

The Dispute Over Scholarly Editions and Geo-Blocking

The Netherlands-based Anne Frank Stichting (Anne Frank Foundation) sought to publish a scholarly edition of Anne Frank’s writings, particularly in regions where the diary had entered the public domain. To navigate differing copyright laws, the Dutch foundation published an online scholarly edition employing “state-of-the-art” geo-blocking technology. This prevented residents of the Netherlands, and other countries where the function is still protected, from accessing the site. Visitors attempting to access the site from restricted regions receive a message informing them of these access restrictions.

The Legal Challenge and the Role of VPNs

The Anne Frank Fonds challenged this approach, arguing that geo-blocking could be circumvented using VPNs, potentially infringing on its copyrights in the Netherlands. Lower courts in the Netherlands dismissed this argument, leading to an appeal to the Dutch Supreme Court. Recognizing the broader implications for EU law, the Dutch Supreme Court requested guidance from the CJEU.

CJEU Advisor’s Opinion: VPNs and Copyright Enforcement

While the CJEU’s ruling is pending, Advocate General Rantos has issued a preliminary opinion. This opinion, though not binding, often indicates the court’s likely decision. Rantos argued that simply circumventing geo-blocking does not automatically imply the copyright holder is communicating the work to the public in a territory where access is restricted. Such an interpretation, Rantos stated, would make managing copyright on the internet territorially impossible.

Rantos emphasized that copyright holders do not have the right to authorize or prohibit communication to the public in a Member State where the copyright has expired. The Advocate General also noted that VPN services are legally accessible tools that users may employ for both lawful and unlawful purposes, and that service providers should not be held liable for unlawful use unless they actively encourage it.

Implications for VPNs and Copyright Law

The case highlights the ongoing debate surrounding VPNs and copyright infringement. Some governments have expressed concerns about VPNs being used to bypass copyright restrictions. However, the Advocate General’s opinion suggests a more nuanced approach, recognizing the legitimate uses of VPNs and avoiding undue restrictions on service providers.

A Question of Access vs. Intellectual Monopoly

Beyond the legal technicalities, the dispute raises fundamental questions about the balance between copyright protection and public access to cultural works. The Anne Frank Stichting’s goal of making a scholarly edition widely available is seen as a laudable aim, promoting understanding and appreciation of Anne Frank’s diary. However, the Anne Frank Fonds has taken legal action to protect its intellectual property rights, even if it means limiting access to the work.

This case exemplifies how copyright can, for some, become an end in itself, potentially overshadowing the cultural and educational benefits of wider access to important historical documents.