http://ipkitten.blogspot.com/2022/02/dutch-court-rejects-copyright.html
The diary of Anne Frank is renowned throughout the world. In some countries, the diary and other scripts and works of Anne Frank are still protected by copyright. After her tragic death, her father Otto Frank, inherited the copyrights on her works.
In a recent case before the district court of Amsterdam, the question was brought whether the unauthorized publication of manuscripts of Anne Frank’s diary would result in copyright infringement.
Background of the case
The Anne Frank Fonds (‘AFF’) is a non-profit foundation based in Switzerland. The AFF was founded by Otto Frank, who appointed it to be the sole owner of the copyrights on Anne Frank’s works.
The Anne Frank Foundation (‘the Foundation’, based in Amsterdam) is an independent foundation and not affiliated with the AFF. The Foundation engages in scientific research and maintains the Anne Frank house in Amsterdam.
In 2008, the Foundation commissioned the Royal Netherlands Academy of Arts and Sciences (‘the Academy’) to start a scientific research project which would allow an interactive comparison of the various works of Anne Frank on a Dutch and English website. The project was based on a facsimile of the manuscripts of Anne Frank’s diary, which had been given by the AFF to the Foundation under certain conditions.
The research project led to an earlier dispute between the AFF and the Foundation, also before the district court of Amsterdam. In those proceedings, held in 2016, it was established that the copyrights on the works of Anne Frank were still valid in the Netherlands and would only expire in 2037. In several countries however, including Belgium, the copyrights had already expired. The Foundation declared that, with regard to the Netherlands, it would refrain from publication of Anne Frank’s works as long as the copyrights had not expired in that country.
| A facsimile of the manuscript of Anne Frank’s diary |
Upon finalization of the research project in 2021, the Foundation issued a press release which stated that the manuscripts would be accessible on a .org domain (www.annefrankmanuscripten.org). The press release also mentioned that the website would not be accessible to Dutch visitors due to copyright restrictions. To effectuate this, a geoblocking system was installed on the website. Furthermore, non-Dutch visitors would be required to tick a box confirming that they visited the website from a country where works of Anne Frank are no longer protected (which had to be selected from a list of 57 countries).
Appearing to be unhappy with these events, the AFF initiated preliminary proceedings before the district court of Amsterdam.
The decision
Before the court, the AFF firstly argued that the Foundation had failed to live up to the previously rendered decision (of 2016), in which it had declared that it would refrain from publication of Anne Frank’s works in the Netherlands. Secondly, it alleged that the publication of Anne Frank’s works on the website would amount to infringement in the Netherlands of the copyrights granted under Dutch law. In particular, the AFF stated that the geoblocking system would be an insufficient measure to prevent infringement, as it could be easily circumvented through a VPN connection.
The Foundation and the Academy, being the defendants, disputed that they had published any works in the Netherlands. The research project was conducted in Belgium (where the copyrights had expired since 2016) and the results were published via a Belgian server on a .org domain with a specific geoblock for Dutch visitors. Since the website could not be accessed by a Dutch audience and was purely non-profit, the defendants concluded there could be no communication to the public in the sense of article 3 InfoSoc Directive an, therefore, no infringement of the Dutch copyrights.
Considering such arguments, the court gave decisive importance to the imposed geoblocking system. The court firstly observed that a visitor with a Dutch IP would not be granted access to the website and instead receive a message explicitly informing them about the website’s inaccessibility due to copyright restrictions. Secondly, the court found that the defendants had in no way incited or encouraged visitors to circumvent the geoblock. Furthermore, the court held that AFF had failed to prove that Dutch visitors actually use a VPN connection to circumvent the geoblock, let alone that a large number of people would do so. With regard to the fact that a geoblock can be circumvented, the court ruled that:
“No technical measure is airtight. The defendants have undisputedly argued that there is no (better) other measure to territorially restrict access to websites than geoblocking, whereby the defendants also pointed out that major companies as Netflix, Disney, Amazon and others all make use of geoblocking to restrict access to copyright protected material in certain countries.” [unofficial translation]
Addressing the issue of a VPN connection, the court continued:
“the use of the VPN-connection raises the question who is performing the relevant act that results in the information being visible in a [country where the works are no longer protected by copyright]. If anything, the Academy transfers the information to a VPN-server in Belgium and the VPN-service provider (and not the Academy) is forwarding that information to the Netherlands [or a country where the works are no longer protected by copyright]” [unofficial translation]
Concluding that the defendants had taken all reasonably measures to block or sufficiently discourage access to the website, the court dismissed the copyright infringement claim.
Comment
In determining whether there was a communication to the public, the Dutch court primarily focused on the role of defendants. Their efforts to prevent and discourage access to the website in the Netherlands, in combination with the non-profit and scientific goal of the website, appeared to be key in deciding that no communication to the public had taken place.
Of interest is the imposition of a geoblocking system: does a geoblock as such prevent a finding that there is a communication to the public? This GuestKat is not fully convinced. Geoblocks can indeed be easily circumvented. One can argue (on the basis of CJEU case law, such as Stichting Brein) that en masse circumvention of a geoblock or (in)direct encouragement to do so, in combination with works being offered on a website or platform that aims to make a profit, could constitute a communication to the public.
The top picture is by Rodrigo Galindez and made available under a Creative Commons Attribution 2.0 Generic License.
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