Anne Frank Fonds Case: AG Opinion On Copyright Territoriality And Borderless Technology

The case originates from the Supreme Court of the Netherlands and is centered around the interpretation of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society ("InfoSoc") which addresses the concept of communication to the public in relation to the use of Virtual Private Network services ("VPN").¹

The proceedings which raised the issues referred to the CJEU stems from an alleged copyright infringement inflicted on the owner of the copyright in the Netherlands ("Applicant"), due to the publication on a website of a new scientific version of Anne Frank's journal ("Work") by a number of Belgian non-profit organisations ("Defendants"). Here, it must be mentioned that the work is still under copyright protection in the Netherlands until 2037, while in most other EU countries protection expired in 2016. The defendants published the work in Dutch using geo-blocking measures against access from the Netherlands, where the work is still protected under copyright, and an additional measure of requesting users to declare that they are accessing the work from a country where the work is in the public domain. Seeing this, the issue raised by the applicant concerns the fact that, despite the geo-blocking measures, the work could still be accessed by internet users from the Netherlands via VPN, thus alleging that the defendants were liable for an unauthorised act of public communication.

Based on these details, the Supreme Court referred to the CJEU three preliminary questions:

• Whether it is necessary for a publication to be addressed to users in a given Member States ("MS") in order for that publication to be considered a communication to the public in that MS and the factors to be considered.
• Whether the publication constitutes a communication to the public in that MS if geo-blocking measures were used, and whether access is possible only using VPN services. Whether it is relevant that the public wants and is able to access such services and whether it matters if there were additional restrictive measures besides the geo-blocking measures.
• If the publication constitutes communication to the public, whether communication to the public is done by the person publishing the content, even though the intervention of the VPN provider was necessary.

Question 1 – the "communication to the public" notion

For the first query, the AG concludes that the publication of the Work constitutes a communication to the public and determines that no condition can be identified in the InfoSoc for the publication of a work to be addressed to recipients in a given MS in order for that publication to constitute communication to the public in that MS. For these conclusions, the AG recalls past case law on the notion of communication to the public, thus the answer from the Court should not differ tremendously. In this sense, the novelty of the opinion lies especially with the answer provided for the second question.

Question 2 – the impact of the VPN (or the lack thereof)

The AG starts by reminding that geo-blocking is acknowledged as both a protection measure for copyright, and a management method for digital rights given that the content can thus generate differentiated income based on territory.² Geo-blocking thus becomes a CJEU-recognized method for limiting access,³ leading to the conclusion that if the publication is not geographically limited for those territories, then the publication constitutes communication to the public in that territory.⁴

As a necessary ancillary observation, the AG underlined that restrictive measures such as geo-blocking are not absolute,⁵ and that VPN is a well-known method to evade geo-blocking.⁶ In this sense, the AG considers that the entity that used geo-blocking cannot be held liable for an act of communication to the public in the case where users employ VPN in order to evade this measure. Otherwise, all communications to the public would be global and restrictive measures such as geo-blocking would be rendered useless.⁷ The only scenario where the publication would constitute communication to the public in the territory where it was geo-blocked is if the restrictive measures can be deemed insufficient or inadequate.

As a result, in what concerns the case, the AG considers that geo-blocking is the only available measure which can be implemented in an adequate and proportionate manner to the purpose envisioned. On this point, the AG opinion lacks sufficient clarity in regard to the capabilities of the geo-blocking. Although the preliminary questions do not refer to the quality of the geo-blocking measures, it would be useful for the CJEU to also offer some guidance pertaining to the level of sophistication required in order to consider that the geo-blocking measures were sufficient and adequate to shield the publishers from liability. Similarly, it will be interesting to see whether or not the judges adhere to the opinion of the AG in that the geo-blocking measures need to satisfy this criterion in order to prevent liability, which in turn would create a new and specific proportionality assessment in the copyright case law of the CJEU.

This test may refer, for instance, to the technical capabilities of the measures. This may refer to a myriad of elements such as the industry-standard of IP filtering, whether the system filters through multiple geolocation indicators besides IP address (payment information, language settings etc.) or how capable the measures are for neutralizing circumvention methods such as VPNs. Additionally, it may be useful to implement a case-by-case analysis of the reasonable efforts undertaken by the publisher, such as the steps that were taken for implementation, the purposes behind the geo-blocking measure and whether this is made clear to geo-blocked users. Of course, as for any proportionality assessment, a stricto sensu analysis must be done on the proportionality of the measures in relation to the envisioned risk. This test will need to take into account the commercial and/or cultural value of the protected work, the likelihood of circumvention and the technical, financial, and operational burden on the publisher.

In practice, this needs to translate to choosing state-of-the art measures when intending to geo-block access to certain works in territories where they are not available. Implementation needs to be documented thoroughly, and the measures must not end at the implementation phase. Active monitoring is quintessential in order to better understand the interaction with users from blocked territories and whether these measures need to be augmented. That is why monitoring specifically for circumvention attempts is paramount. While confirmed evasions of the measures are problematic, they do not automatically trigger the need to enhance protection, as seen in the opinion of the AG.

Seeing that circumvention would be an ongoing element in the assessment of geo-blocking implementation, question 3 becomes even more so relevant, although the considerations of the AG are limited.

Question 3 – copyright liability for VPN providers

Seeing the answer to Question 2, the AG does not consider it necessary for the CJEU to also respond to Question 3, but nonetheless offered a short observation on the degree to which VPN providers can be considered responsible for an act of communication to the public. In principle, the AG highlights that VPN providers are intermediaries which do not communicate the work to the public, but rather only ensure access to the Internet.⁸ The only caveat made by the AG is made for the situations where the VPN provider actively encourages the use of their service for illicit purposes such as evading geo-blocking.

Although limited to the facts of the Anne Frank Fonds case, question 3 highlights the ever-growing interaction between intermediary liability and copyright law. Moreover, it adds to the existing case-law by placing VPN providers in the copyright realm, alongside traditional hosting platforms, such as the case in Youtube and Cyando where it may be easier to ascertain that the platform has an active role in the content or knowledge about specific infringements, and alongside hyperlink providers, such as in Svensson and GS Media, where there is a communication to the public only if the public is new. VPN providers may rarely be involved in actively promoting their services with the purpose of evading copyright protection, although this may have occurred in some marketing campaigns of such providers.

Being a "mere conduit" under the Digital Services Act ("DSA")⁹, as VPN providers do not initiate the transmission of, do not select the receiver of the content, and do not select or modify the information in the transmission; therefore they are not liable in principle if these conditions are met. This is why the distinction regarding active encouraging is important and may attract liability. Nonetheless, the notion of active encouragement is not defined and may raise practical issues without some proper guidance from the CJEU, should the judges choose to embrace the AG's Opinion. relevant factors for assessing active encouragement may include the marketing materials used and promoted by the VPN provider, the features of their service and whether they encourage geo-blocking circumvention, whether circumvention cases are documented internally and to what degree is this discouraged, and whether the provider's financial model is highly dependent on users wanting to avoid geo-blocking measures. All of this also serves as practical guidance for any VPN provider concerned with compliance.

In conclusion, the Anne Frank Fonds case rich not only represents an important step in EU's copyright case-law, but it also serves as a steppingstone for other avenues that may remain unexplored by the CJEU in their answers to the three preliminary questions. Nonetheless, the approach of the EU judges will be important in the current technological landscape of the EU, given the widespread use of both geo-blocking measures by publishers, and VPNs by users. The balance between legitimate uses of such services and attempts to circumvent copyright protection sits on a very fine line, which is why the conclusions of the CJEU must be as assertive and careful to avoid creating a dangerous precedent.

Footnotes

1. Article 3(1) of the InfoSoc states that "Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them."

2. AG Opinion in Case C-423-21 Grand Production, 28-30.

3. Ibid., 35; CJEU, Case 392/19 VG Bild-Kunst, 42-43.

4. Ibid., 36.

5. Ibid., 42.

6. Ibid., 38.

7. Ibid., 39.

8. Ibid., 41.

9. REGULATION (EU) 2022/2065 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act).

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