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Wednesday, 18 November 2015

Copyright term, authorship and moral rights: the intriguing tale of Anne Frank's Diary

This Kat, who has received a considerable volume of correspondence relating to Anne Frank's Diary, has been frustrated that the volume of incoming correspondence and matters arising from recent blogposts on other subjects has distracted him from pursuing a spot of research on the copyright aspects of this intriguing, historically significant and sensitive topic.  Fortunately, Katfriend, occasional contributor and scholar Mira T. Sundara Rajan offered to do some research of her own, and this is what she writes:
It is an unremarkable house, partway down one of Amsterdam’s many canals, and there is nothing to distinguish it from the houses surrounding it. But how appearances are deceiving! This house is a site of pilgrimage for millions worldwide, who come here to see the place where a young girl spent the last days of her life before being discovered and taken away to a concentration camp. The year was 1944, and the girl was Anne Frank.   
Is this work really jointly-authored?
The end of this sad story is known to everyone who has heard her name. In the years following her death, it was discovered that Anne had written a diary while living in this house. The diary was eventually published by her father, who had survived the ordeal of World War II though his daughter had not. The diary revealed a lively mind cut short in its prime. Anne was already a writer; death transformed her into a potent symbol of the perseverance of the human spirit through the atrocities of the War. It comes as no surprise that the book became one of the great best-sellers of the twentieth century. Protected by copyright law, it generated significant revenue for the Anne Frank Fonds, which the Foundation has used for various purposes, including charitable and humanitarian causes .... Until now.   
Anne’s copyright is set to expire this year. The Foundation, however, would like to hold on to its control of the diary. There would only be one real means of doing so: extending the copyright in the work. This situation is by no means unusual. The extension of copyright term has been contemplated for different reasons in the past, by various jurisdictions. In 1857, Russia increased copyright term to shield Pushkin’s widow from poverty. In 1992, India extended its term of protection by ten years to prolong the copyright of Rabindranath Tagore, the Indian Nobel laureate in literature. This allowed Visva Bharati– the University established by Tagore, which ultimately held the copyright in his work – to continue to benefit from the copyright for another decade, a controversial policy. A copyright amendment to extend term was again rumoured as Mahatma Gandhi’s copyright approached expiry in 2009, but no 
change was made (or desired by the copyright ownerthe Navajivan Trust established by Gandhi). India has also taken the opposite course of terminating copyright early (in Subramania Bharati’s case), as did the Bolsheviks, shortly after the Russian Revolution of 1917, proclaiming their desire to make great works of literature available to the public. In the United States, the Copyright Term Extension Act of 1998 cynically came to be known as the “Mickey Mouse Protection Act.” The ostensible goal of the Act was to harmonize U.S. copyright term with Europe’s; in the result, it prolonged the term of valuable copyrights held by the powerful Disney corporation that survived Walt Disney, which lobbied in favour of the new law.   
The Anne Frank Fonds would like to extend copyright, too, but it has taken a different approach. It argues that the girl’s diary underwent significant editing at the hands of her father – so significant that he should, in fact, be considered a co-author of the work. If this were to be accepted, copyright in the diary would automatically be prolonged, since her father survived Anne by many years, and, under Dutch copyright law, term in works of co-authorship is determined by the lifetime of the last surviving author plus the usual 70 years (Art. 37 of the Dutch copyright law). The copyright in the diary would then endure until 2051. This proposition raises a number of thorny copyright issues – among them, the disturbing possibility that the Fonds, itself, could be guilty of violating Anne’s own copyright.  
 The first question that will come to mind for many is one of fact. If the contribution of Anne’s father’s was instrumental in the creation of this work, why has his co-authorship never been acknowledged before? His role in publishing the diary is well-known and accepted by all. Has new information emerged now? If so, is it so significant that it would fundamentally change our understanding of the authorship of this work? 
 There can be no doubt that the public should insist on adequate factual support for such a bold assertion. Copyright is a powerful right, and its fundamental purpose is an idealistic one: to protect the human creators of works. Copyright should not be taken lightly by those who claim it. In particular, the Fonds may be influenced by the misperception that copyright can be acquired through something less than true authorial originality. Media coverage of this issue notes that one subsequent editor of Anne’s diary has been able to claim a separate copyright based on her own editorial work on the manuscript (which was eventually transferred to the Anne Frank Fonds). However, it is important to be clear on what exactly is involved here. Copyright in the new edition would have been just that: copyright in that version of the work, and nothing more. No editor could ever claim copyright in Anne’s manuscripts or her writing or, indeed, in earlier published versions of the diary.  
 Even the editor’s copyright in his or her own edition is not such an easy matter as it once might have been. The standard of originality that is required has been creeping steadily upwards worldwide; since 1991, even the United States Supreme Court has required “a creative spark,” while the Canadian Supreme Court has emphasized the “non-trivial” nature of the new contribution since 2004. In the UK, matters are not quite as clear, but the need for harmonization with Europe strongly supports the idea that some level of intellectual creation is required. And in Continental Europe, where Anne lived and died, the standard has always been to demand a level of true originality – creativity, an intellectual contribution. Did Anne Frank’s father really make such a contribution to her diary? If so, why was it not recognized before? To suggest that someone else co-wrote Anne’s diary is something more than a misapplication of copyright law; it strikes at the heart of Anne’s own rights as an author. The laws of all European countries, and almost all world jurisdictions, protect an author’s “moral” or “personal” right to be attributed as the creator of his or her own work. The moral right of attribution lasts at least as long as the copyright; in some countries, it lasts forever. The justification for this is simple: an author is always the author of his or her own work.  
 Moreover, in the case of a writer of historic significance, which Anne undoubtedly was, there is a strong, perhaps overwhelming, public interest in proper attribution. Through the frail person of this vulnerable young writer, history and truth demand protection. Unless there is persuasive evidence that at least some of Anne’s words and thoughts were actually contributed by her father – or that he shaped the diary at such a fundamental level that the final product was a direct reflection of his own work – such a challenge to authorship, to historical truth, and to Anne’s moral rights as an author, should clearly be rejected.  
Moushie (right) stars with Millie Perkins
in the 1959 movie version of the diary
But the issue is clouded by the fact that the potential co-author under discussion is Anne’s own father. The question of what contribution was actually made by Otto Frank to his daughter’s work may well be a subtle one – something not easily determined as a matter of fact, and reflecting the reality of authorship and publication in exceptional circumstances. From a legal point of view, however, we need to establish a clear position, in unambiguous black and white, because copyright protection turns on this issue. Given the power of copyright, and the long factual record already established in this case, any doubt about Otto’s contribution mandates the continued recognition of Anne as the sole author of her own diary. To do otherwise, particularly with the goal of extending the copyright term, would amount to an abuse of copyright law.
 Is the Foundation sensitive to this issue? The New York Times notes,
“[M]erely declaring Otto the “co-author” on copyright filings extends the copyright, legal experts said, though such a stand could be tested in the courts. Readers would not see any changes on the books themselves, foundation officials said.”
This concept seems absurd in its own right – to publish a book that is co-authored without indicating the name of the co-author on the book – and potentially adds to the confusion. If the Foundation wants to extend copyright, it needs to be able to demonstrate strong public policy reasons why the works should not be freely available in the public domain at this time. Such arguments do exist. The integrity of Anne’s words may demand continued protection; once her copyright expires, it seems likely that publication and adaptation will proliferate, especially in the technological environment. Given its special nature and meaning, the integrity of this work seems in particular need of careful preservation. 
 Comments from the Foundation seem to suggest that this may be their true aim –  seeking to
“make sure that Anne Frank stays Anne...When she died, she was a young girl who was not even 16. We are protecting her. That is our task...It is not about the money.” 
But extending copyright in the work is an awkward way of seeking to accomplish this purpose. What might make more sense would be the extension of moral rights in the work (sensibly known as “Personality Rights” under Dutch law). This would empower the Foundation to act on behalf of the works, to maintain and protect their integrity and, of course, proper attribution. But this would require state intervention in the Netherlands – a major step, though, as noted above, not unprecedented on the world stage. Under Dutch law, the author’s personality rights endure as long as the copyright. In other jurisdictions, including France and India, they last forever.  
 Anne dreamed of being a writer, asking, “...will I ever become a journalist or a writer? I hope so, oh, I hope so very much...” Her father hoped to realize her dream through his publication of her work; when the diary became a successful and beloved book, he dedicated his life to its dissemination. Is the present course of action something that either Anne or her father would have wanted?  
 With thanks to Florian de Rouck, LLM Glasgow 2014, for his translations of the Dutch copyright law.


Anonymous said...

Hello, just to add that there are a number of trade mark cases as well, relating to the Anne Frank trade mark, sometimes declaring it invalid (Geoffrey Hobbs, a Belgium court), sometimes not (the Fourth Board of Appeal of OHIM)

Sally Cooper said...

And Peter Pan ? Copyright Designs & Patents Act 1988 in the UK ?

Michael Factor said...

Unlike the Little Prince, Peter Pan and Wendy, this particular character was a real person.

Like the Little Prince, Peter Pan and Wendy, she seems to be a copyright exception.

Roland Wigman said...

Just a note on Dutch copyright law: personality rights do not inure for the benefit of an author's estate. The author must make a specific provision in a testament or in a codicil to transfer his personality rights upon his/ her death. Without such a specific provision, they end with the death of the author. As it is unlikely that Anne Frank made any such provision regarding her personality rights, they are non existent.

Charles Oppenheim said...

It has long been known (I first read about it in the late 1960s) that Anne Frank's father heavily edited the original diaries, primarily to change references to him and his wife (apparently Anne was very critical of her parents in the diaries), and deleting most sexual references. So Otto Frank produced an adaptation of the original, and the copyright in that adaptation is jointly owned by Anne and her father. Since her father died in 1980, the © in the published diaries goes on till 2150.

Now it is true that the © in the ORIGINAL diaries will expire shortly, but that is useless if one cannot get access to them to scan/reproduce them. As I understand it, the original diaries are held by the Anne Frank Foundation and it is not releasing them to third parties.

So as I see it, the well known published diaries are still in © and will remain so for a long while yet. The original diaries will come out of © very soon, but in practice no-one can reproduce them because they cannot get access to them.

As I say, all this should have been well enough known a long time ago. But I do agree that the Anne Frank Foundation does not come out of this well by suddenly announcing the apparent extension of term now. It should have made the position clear many years ago. So in my view it has acted in bad faith, but that the law is on its side.

Kant said...

There would be a potential problem for the Foundation litigating this. Presumably, they would have to prove that the editing was sufficient to create a copyright protected work which would mean disclosing the content of the original version which would then open up the possibility for publishers to reproduce the original work.

THE US anon said...


You pose an interesting dilemma for anyone out there in this digital age.

One of the key attributes (from my US perspective) of what is - and importantly, what is NOT - a part of the bundle of rights that is Copyright is the limit of "locking down completely" that which for rights is sought.

The nuanced view of Fair Use (again, speaking from my US perspective), is that there is NO such "right" to fully lock away anything, and that a certain amount of "loss" is always available through the path of Fair Use.

The nuance comes from the realization that Fair Use is not an exception to the rights of Copyright, as much as it is a "rights not given IN copyright."

Of course (much like the pending dilemma in the patent world with digital printers), the problem with digital goods concerning the bundle of rights that is Copyright is that even a single digital "copy" - even or especially one still reserved outside of what is truly Copyright - can in this day and age eviscerate the "worth" of the right.

This should lead us to a discussion of a different nature: how should we evolve intellectual property laws in the modern era.

Lionel said...

I believe Charles is wrong about the manuscripts being unpublished and held onto by the Foundation. In fact, there is an excellent critical edition of the two original manuscript versions by Anne Frank that was published in Dutch in 1986 and English in 1989.

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