Adviser in Anne Frank case suggests VPNs alone don’t break copyright borders

(CN) — In a closely watched dispute over who controls online access to Anne Frank’s diary, a senior EU legal adviser said Thursday that a website doesn’t cross national copyright lines just because savvy users can sneak around geographic restrictions.

The case, brought by the foundation started by Frank’s father, tests how far copyright holders can extend territorial control across an internet built for seamless cross-border access.

In a nonbinding opinion to the Court of Justice of the European Union, Advocate General Athanasios Rantos said the decisive issue is not whether geoblocking can be bypassed in practice, but whether a publisher makes a protected work available to the public in a country where copyright still applies.

“The fact that users manage to circumvent a geoblocking measure put in place to restrict access to a protected work does not, in itself, mean that the entity that put the geoblocking in place communicates that work to the public in a territory where access is supposed to be blocked,” he wrote.

Geoblocking is technology that can restrict access to internet content depending on geography — including virtual private networks, which let users mask where they are located.

The dispute centers on a clash between the Anne Frank Fonds, which holds the copyright for certain versions of her diary in the Netherlands, and a group of academic and cultural institutions that published a comprehensive scholarly edition of the manuscripts online. While the diary entered the public domain in several EU countries in 2016, including Germany, Belgium and Italy, copyright protection in the Netherlands runs until 2037.

To account for that divide, the publishers limited access where the diary is still protected, using geoblocking and on-screen warnings. The Fonds challenged that setup, arguing that the possibility of access through VPN services was enough to make the publication unlawful in the Netherlands.

Rantos rejected that logic, warning that tying liability to the mere possibility of circumvention would make territorial copyright unworkable online.

“It is common ground that, in both the virtual and real world, no security measure is absolutely inviolable,” he wrote, underscoring that EU law does not expect publishers to do the impossible.

In his view, copyright responsibility turns on a publisher’s conduct, not on every workaround devised by determined users, unless the safeguards are intentionally flimsy or built to be easily defeated.

Stef van Gompel, a professor of intellectual property law at the Vrije Universiteit Amsterdam, said the advocate general got it right in drawing a clear line between a publisher’s actions and what users might do to get around them. Treating VPN workarounds alone as a copyright violation, he said, would stretch the law too far.

“Otherwise, this would mark the end of online territorial licensing of copyright in the EU and jeopardize the free flow of information online,” van Gompel said. He warned that otherwise, works published where they are in the public domain could end up effectively off-limits online “if the work is still in copyright in any other country in the world.”

Frank, a Jewish teenager who hid from Nazi persecution in Amsterdam with her family and later died in a concentration camp, kept a diary that has become one of the most widely read personal accounts of the Holocaust. Her writings are studied around the world, and attempts to make them available online have repeatedly forced courts to weigh public access to history against the limits of copyright law.

The answer is likely to shape how courts across the bloc approach similar disputes, especially when a work is protected in some countries but free to use in others. For libraries, archives and scholars trying to make historical material available online, the opinion offers a clearer sense of where legal lines may be drawn.

Elena Izyumenko, assistant professor of information law at the University of Amsterdam, said the opinion signals a shift in how courts are being asked to approach online copyright disputes.

Instead of reducing cases to a technical cat-and-mouse game over whether access is possible somewhere in the EU, she said the advocate general reframed the issue around responsibility and intent, focusing on whether a publisher is genuinely trying to respect national copyright boundaries.

Other legal scholars see the opinion as part of a broader recalibration in how courts think about the gap between online access and legal responsibility.

Joanna Kulesza, director of the Lodz Cyber Hub and an assistant professor of public international law at the University of Lodz, said the case highlights “a recurring tension in EU copyright law between the territorially grounded structure of rights and the realities of online dissemination.”

That tension, she noted, becomes especially sharp “where access to content is formally restricted through geoblocking yet remains technically possible through circumvention tools such as VPNs.”

Giancarlo Frosio, professor and chair in intellectual property and technology law at Queen’s University Belfast, described the dispute as a collision between legal design and technical reality.

“The core tension in Anne Frank Fonds is between the legal concept of ‘targeting’ and the technical reality of ‘accessibility,’” he said, warning that treating VPN circumvention as decisive would encourage excessive blocking and erode the territorial framework that underpins Europe’s creative economy.

Representatives for both the Anne Frank Fonds and the academic institutions involved did not immediately respond to requests for comment.

The opinion itself does not settle the dispute. A binding ruling from the Court of Justice of the European Union is expected in the coming months, and judges are not required to follow the advocate general’s advice, even though they often do.

For now, Rantos’ analysis sketches a narrow balance: Copyright protection remains intact, but the law stops short of treating every successful digital workaround as proof that territorial limits have collapsed.

Courthouse News reporter Eunseo Hong is based in the Netherlands.