On April 26—World Intellectual Property Day—the original, Dutch-language version of The Diary of Anne Frank was published online at annefrank.centrumcyfrowe.pl. With the publication of the original version of the diary, we wanted to highlight the absurdly long copyright terms in the EU. In addition, we wanted to point out that, contrary to the general assumption, the duration of copyright is still not unified across the EU. This leads to the troubling practice of geo-blocking which creates artificial boundaries online. Our posting of the diary online attempts to show the complicated copyright framework for this and similar works, and champions freedom to access to cultural heritage works in the public domain for creators as well as users. But our campaign appeared to convey an even stronger message.
The campaign raised various concerns with regard to copyright terms and access to culture. We’ve already examined the differences between the three versions of the diary, so we won’t go into that in depth here. Without a doubt, versions A and B did not enter into public domain in the Netherlands due to specific copyright regulations (This is due to a transitional rule in the Dutch copyright act which states that works posthumously published before 1995 will retain copyright — in this case large parts of the original writings will only expire in 2037).
But the versions did enter the public domain in Poland. We think that the Digital Single Market should take under consideration adjustments to copyright that will better support the digital environment and access to creativity across borders. We were surprised to learn that Germany is considering extending their copyright term for authors who died under the Nazi regime (this change is not yet official, although the discussions continue between German authors and collecting societies). Such a move will create further legal uncertainty not only for users, but also for entrepreneurs who want to use works in the public domain.
Geo-blocking is another frustrating practice that places additional hurdles or transactional costs on users who simply want to be able to access (and pay for) creative content online. Licensing segmentation and content blocking can affect access to works in the public domain when those materials are subject to the same types of blunt restrictions as the copyrighted materials. Europe has a strong policy and vision for the re-use potential of publicly available resources—for example public sector information or creative works in the public domain. If we care about enabling broad re-use of these materials, we need to tackle the serious problem of geo-blocking.
We received some pushback on our characterization of geo-blocking. We used the term to describe the rationale behind our posting of the diary as a copyright territoriality issue—namely that the varying copyright terms permitted us to publish it in Poland because it is considered to be in the public domain there (in contrast with the Netherlands).
Since the notion of “communication to the public” is still being discussed in CJEU jurisprudence, we decided to make it possible to download the original version of the diary in Poland, but not in the Netherlands. We know that the term geo-blocking is used mostly in the context of cross border access to legally acquired online content (with the famous case of Andrus Ansip not being able to watch an Estonian football match online while in Brussels). But to us geo-blocking is a common name for the more general practice of limiting access to copyright-protected content to specific national markets. And without a doubt, restricting access to any content due to extended copyright terms falls under such a characterization.
One other criticism we heard about our campaign is that The Diary of Anne Frank is easily (and cheaply) available in print. Surely this is true, but our campaign was never meant to be about money. We think that the diary should be freely available online—in the public domain—because everyone should be granted the right to access and enjoy this important cultural heritage work. The fact that some versions of the diary are still under copyright in some countries is the result of nothing more than the lack of harmonization in EU law. Preventing broad access and re-use rights to the work is directly opposed to the stated purpose of copyright — to advance culture and science.
The Diary of Anne Frank is an excellent example of why Europe needs a modern and progressive copyright framework. Currently, the rules for establishing copyright terms are so complex that we need a small army of international IP lawyers just to determine whether a particular work is still protected by copyright or neighboring rights. In particular, the lack of effective harmonisation of the duration of copyright across the EU hampers the efforts of organisations and entrepreneurs, who simply want to offer innovative online products and services. Only an intervention at the European level can remedy this situation. As we have stated before, the term of copyright protection should be reduced and fully harmonized throughout the EU. If we want to fully unlock the potential of our rich cultural heritage to foster the Digital Single Market, we need clear rules that permit anyone to easily determine the rights status of a work.