The Dutch Supreme Court has referred the case concerning the copyright of the online publication of Anne Frank’s diary to the European Court of Justice. The Anne Frank Foundation is demanding that the publication of Anne Frank’s diary manuscripts on a website be stopped or that the website be blocked for the Dutch public, including via VPN or proxy.
The main question is whether this publication on the website meets the requirements for presentation to the Dutch public under copyright law. The conclusion of the case advocates (given the uncertainty and cross-border importance of the case) asking the ECJ preliminary questions regarding this.
Among other, the Dutch Supreme Court asks the ECJ to clarify:
• whether a work, which is published online, can be considered as a presentation to the public in a particular country, if the publisher intended to reach the public there,
• if a website prevents access from certain countries, but users can bypass the block via VPN, does this constitute public disclosure in those countries and, if so, who is held responsible for the public disclosure: the website owner, the VPN provider, or both?
The above questions are crucial for both creators and distributors of online content, as well as copyright holders.