21 February 2022

Anne Frank's work online: infringement of territorial copyright vs global reach of internet

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De Brauw recently assisted the Anne Frank Stichting – a Dutch foundation and the guardian of the Anne Frank House – in copyright-related proceedings over the online publication of its extensive scientific research into Anne Frank's writings. Using preventive measures, in particular geo-blocking, the online publication had only been made available in countries where the relevant copyrights had lapsed. The Swiss-based Anne Frank Fonds, however, argued that the online publication infringed its territorial copyrights in the Netherlands. The proceedings centred on the freedom of scientific research, as well as the combination of national copyrights vs the use on the worldwide web.


The court proceedings


The research took place over a ten-year period and was done in close cooperation with the Huygens Institute, part of the Royal Netherlands Academy of Arts and Sciences (KNAW'). The Belgian Association for Research and Accessibility of Historical Texts published the scientific research in a free online publication. The online publication contains the original manuscripts of Anne Frank's diary, together with historical background information and comparative analyses.


In 2016, Anne Frank's works became part of the public domain in over 60 countries, including Belgium. But due to complex copyright issues, part of her works remain copyright-protected in the Netherlands. By means of geo-blocking and other protective measures, the online publication is not accessible in the Netherlands. The Switzerland-based Anne Frank Fonds, the holder of the remaining copyrights on Anne Frank's works (including those in the Netherlands), contested publication of the online publication and summoned the Anne Frank Stichting, the KNAW, and the Belgian association before the Amsterdam District Court. The Anne Frank Fonds' reason for filing this claim was its plans to publish its own scientific research. This court action raised the legal question of whether the publication of the Belgian association's online publication constituted copyright infringement in the Netherlands. The Anne Frank Fonds claimed it did because even though measures had been taken, geo-blocking could be circumvented by use of VPNs by end users.


On 1 February 2022, the Amsterdam District Court rejected all of the Anne Frank Fonds' claims, ruling in favour of our client, the Anne Frank Stichting. Among other considerations, the court held that the Anne Frank Stichting, the KNAW and the Belgian association did everything reasonably possible to block access to the online publication in the Netherlands, or at least to make it sufficiently difficult and dissuasive. For this reason, the court ruled that the defendants did not perform any relevant acts which constituted copyright infringement in the Netherlands.


This decision is the first in the Netherlands on dealing with territorially limited copyrights on the internet.


Copyright territoriality and the internet


Copyrights are national rights and territorial in scope. The scope of protection, as well as the duration of protection, may vary from country to country. Certain acts may therefore constitute copyright infringement in one country, but not in another. This can be difficult to maintain with the global reach of the internet – when no specific measures, such as geoblocking, have been taken.


In the proceedings, the Anne Frank Fonds argued that the possibility for end users in the Netherlands to access the Belgian association's online publication by circumventing geo-blocking (for example, by using a VPN server) constituted copyright infringement on the Anne Frank Stichting's part. The Amsterdam District Court did not accept this argument, as the defendants had taken extensive efforts to block access to the online publication in the Netherlands, including geo-blocking – which is standard market practice and is frequently used by companies such as Netflix to prevent infringements on copyright-protected works in specific countries.


Another issue that arose in the proceedings centred on determining if any of the entities involved performs any "relevant acts. The Anne Frank Stichting set out that the Belgian association certainly did not perform relevant acts. If any entity had, it was the VPN provider, as it – not the Belgian association - made the online publication available in the Netherlands for VPN users. The court did not explicitly rule on this point, as it had already accepted other defences. The court did acknowledge, however, the underlying legal question and made the factual determination that, in this case, it is the VPN provider that makes the content available in the Netherlands.


In this specific case, it is important to keep in mind that copyright is not absolute as the online publication is a significant contribution to the scientific community. The court ruled that even if the online publication constituted copyright infringement, particularly in the electronic environment, a fair balance must always be ensured


between the interests of copyright holders on the one hand, and the interests and fundamental rights (such as freedom of science) of users of protected subject matter, on the other. The court furthermore ruled that it would be especially disproportionate to grant an injunction - which would effectively make the online publication unavailable in those 60 countries where all relevant copyrights have already lapsed. The court dismissed all claims and ordered the Anne Frank Fonds to cover the legal expenses of the Anne Frank Stichting, the KNAW, and the Belgian association.


The judgment is available here (in Dutch).