On 8 November, the Dutch Supreme Court formulated the questions it will refer to the European Court of Justice in a case between Anne Frank Fonds and our clients, Anne Frank Stichting, KNAW and the Belgian association VOOHT. The case addresses the tension between the internet's global reach and its national treatment under copyright law. The central issue is whether the publication of a work on a website in a country where the work has fallen into the public domain constitutes a "communication to the public" – as defined in Article 3(1) of the Copyright Directive – in a country where copyrights are held if access to the website is restricted via state-of-the-art geo-blocking measures, given that users may circumvent these measures by using certain VPN or proxy services.

Background - Anne Frank copyright case

This matter concerns a dispute between Anne Frank Fonds (which holds the residual copyrights to the Anne Frank diaries) and Anne Frank Stichting (known as the guardian of the Anne Frank diaries and caretaker of the Anne Frank House in Amsterdam), the royal Netherlands Academy of Arts and Sciences (KNAW), and the Belgian non-profit association VOOHT (AFS et al.).

AFS et al. jointly conducted scientific research relating to the writings of Anne Frank. The result was an extensive research project stretching over ten years in which the original manuscripts of Anne Frank's diary, together with historical background information and comparative linguistic analyses, were published. In 2016, Anne Frank's works fell into the public domain in around 60 countries, including Belgium. But in the absence of full harmonisation within the European Union, part of her work remains copyright-protected in the Netherlands until 2037. Access to the Belgian website is restricted via state-of-the-art geo-blocking, which prevents access to the site from a Dutch IP address, as well as via an additional access check. If users truthfully declare they are in the Netherlands, they will be denied access and will receive the message "We're sorry… Unfortunately, this site is not available in your country". However, this system is not watertight. Users in non-public-domain countries - like the Netherlands - who are willing to circumvent the protective measures (by using certain VPN or proxy services) and who - on top of that - are willing to provide a false statement about their location, can access the website from a non-public domain country.

On the basis of its copyrights, Anne Frank Fonds opposed the publication of the scientific research into Anne Frank's writings on the Belgian website and started civil litigation against AFS et al. in the Netherlands. Anne Frank Fonds claimed copyright infringement in the Netherlands, as the publication is accessible in the Netherlands by using a VPN or proxy server and by providing a simple statement. AFS et al. argued that by using state-of-the-art geo-blocking measures and imposing an access check, sufficient steps were being taken to prevent internet users in the Netherlands from accessing the website. Both the Amsterdam District Court and the Amsterdam Court of Appeal ruled in favour of AFS et al. According to the Court of Appeal, with all the measures taken, the publication of Anne Frank's work on the Belgian website did not constitute a "communication to the public" in the Netherlands. In response to the Court of Appeal's decision, Anne Frank Fonds lodged an appeal to the Dutch Supreme Court.

Grand Production v GO4U case

This question of whether a "communication to the public" is made to the public in a certain country if adequate geo-blocking measures are taken to prevent users from having access to the website, was already referred to the European Court of Justice in Grand Production v GO4U. But since the case was withdrawn, a decision clarifying the issue was never made. Nonetheless, Advocate General (AG) Szpunar issued an advisory opinion – the Court of Appeal also mentioned this in the Anne Frank decision – that is noteworthy for various reasons.

First, because the AG highlighted the fundamental principles at stake: "there is a fundamental contradiction between the borderless and global nature of the internet on the one hand, and the territorially limited rights and obligations attached to the various online activities on the other." Second, because the AG elaborated on geo-blocking as one of the instruments of digital rights management and suggested a standard to assess whether a "communication to the public" is actually made in a certain country if geo-blocking is used.

Drawing inspiration from previous European Court of Justice case law in other fields of intellectual property law, the AG advised interpreting Article 3(1) of the Copyright Directive in such manner that no communication to the public is made in a geo-blocked country if adequate – that is to say: not intentionally ineffective – geo-blocking measures are taken, irrespective of the fact that geo-blocking measures may be circumvented. In the words of the AG: "there are no safeguards, either in the virtual world or in the real one, which cannot be circumvented or broken". The AG substantiates this by stating that another conclusion "would make it impossible to manage copyright on the internet on a territorial basis, since any communication of a work to the public on the internet would in principle have to be global."

Dutch Supreme Court refers questions to the European Court of Justice

According to the Dutch Supreme Court, it is insufficiently certain how Article 3(1) of the Copyright Directive should be interpreted. To address this gap, the Supreme Court has referred three questions to the European Court of Justice:

• Should Article 3(1) of the Copyright Directive be interpreted in such a way that a publication of a work on the internet can only be regarded as a communication to the public in a particular country, if the publication is aimed at the public in that country? If so, which factors should be taken into account when assessing this?
• Can there be a communication to the public in a certain country if (state of the art) geo-blocking has been used to ensure that the website on which the work is published can only be reached by the public in that country by bypassing the blocking measure, using a VPN or similar service? Is it relevant to what extent the public in the blocked country is willing and able to access the website in question via such a service? Would the answer to this question be different if, in addition to the geo-blocking measure, other measures have been taken to ensure that access to the website by the public in the blocked country is prevented or discouraged?
• If the possibility to circumvent the blocking measure entails that the work published on the internet is communicated to the public in the blocked country within the meaning of Art. 3(1) Copyright Directive, is that communication then done by the person who published the work on the internet, despite the fact that for accessing that communication, the intervention of the provider of the relevant VPN or similar service is required?

In answering these questions, the European Court of Justice will have the chance to provide clarity on various questions, including whether the standard suggested by AG Szpunar is the right one or whether another standard applies.

Tobias Cohen Jehoram – who also handled the case in fact-finding instances together with De Brauw's IP team – and Irina Timp represent AFS et al. before the Supreme Court and the European Court of Justice.