Anne Frank and the Term of Copyright Protection: Why it’s Time to Move from Harmonisation to Unification

Anne Frank campaign cover photo
#readannediary
Licentie

The text was written by Katarzyna Strycharz. 

Since the beginning of the year there’s been a lot of discussion (and confusion too) about whether the Diary of Anne Frank is now in public domain. Under the normal rules regarding the duration of copyright protection, the work should have entered into the public domain on 1 January 2016. However, there were several unusual circumstances that brought this into question. First, the Anne Frank Foundation announced their plans to list Otto (Anne Frank’s father) as a co-author, which would extend the protection period of the published diary until 2050. Next, due to a transitional rule in Dutch law it became clear that Anne Frank’s original writings would not enter the public domain in 2016 in the Netherlands (and many other EU countries with similar rules). Finally, in early February the Wikimedia Foundation (the organization that hosts Wikipedia and related projects) decided to remove the Dutch-language text of the diary from Wikisource.

On Tuesday 26 April, World Intellectual Property Day, the original, Dutch-language version of ‘The Diary of Anne Frank” will be published online at annefrank.centrumcyfrowe.pl. With this publication of the original version of the diary we seek to highlight the absurdly long duration of copyright in the EU, as well as the fact that, contrary to general assumptions, the duration of copyright is still not unified across the EU and the troubling fact of geo-blocking which creates boundaries online.

On the Anne Frank Foundation website we can read that “Anne Frank’s original writings, as well as the original in-print versions will remain protected for many decades”. So, when does the copyright of the diary expire? It seems that the answer varies from country to country, and we’ll try to investigate whether there is somewhere in the EU where the writings of Anne Frank are now in the public domain.

Transitional provisions in the Dutch law

To fully understand the issue at hand, we observe that there are actually three versions of Anne Frank’s diary writings. Two versions of her manuscripts (version A and B) were combined into the book (version C). This book is commonly known as the the Diary of Anne Frank, and was published in 1947.

As we have previously discussed, version C was compiled by Otto Frank and thus is still protected by copyright 70 years from the time of his death in 1980. But in the case of manuscripts (version A and B) there is no doubt that Anne Frank was the sole author. As we can read  in the statement of the Anne Frank Stichting (who runs the Achterhuis in Amsterdam)“Otto Frank is not the co-author of the original diary writings of Anne Frank”. The same is confirmed by the Anne Frank Foundation (who own the copyrights in Anne’s work), which claims that “copyrights to Anne Frank’s original texts originally belonged to the author, Anne Frank herself”.

FullSizeRender

Page from ‘De Dagboeken van Anne Frank”, published by the Dutch Institute for War, Holocaust and Genocide Studies (2001 edition), showing the three versions (from top to bottom A, B and C) of the 9 november 1942 entry in Anne Frank’s diary.

In the Netherlands copyright lasts for 70 years after the death of the author. And even though Anne Frank was killed in 1945, this doesn’t mean that the A and B versions of her diary are in the public domain under Dutch law. This is because the full manuscripts were first published in 1986, and the rule at that time said that works which were first published posthumously are protected for 50 years after the initial publication.

The 2013 Dutch copyright act implementing the 1991 term directive contained transitional provisions stipulating that rights which existed under the previous law continue to exist. This means that versions A and B of the Frank diary will remain under copyright in the Netherlands until 1 January 2037 (50 years after the 1986 publication).

What about other countries?

The websites of both the Anne Frank Stichting and the Anne Frank Foundation say that the expiration of the copyright on Anne Frank’s diary differs from country to country, depending on each country’s copyright laws.

In theory, the copyright duration has been harmonised by the Copyright Term Directive to 70 years after the death of the last surviving author. In practice, each country has its own rules. Two main factors have contributed to this situation: the divergence of legislation between member states and a large number of national exception clauses which extend beyond the general term prescribed in the Directive. Thus it is really surprising that the EU considers this subject as unified.

In countries like France or the UK, where there are similar rules for posthumously published works apply, the Diary of Anne Frank remains protected for many years more. In Spain, where the term of protection was longer (for some period) than prescribed in the Term Directive, the protection of Anne Frank’s works will be extended by 10 years. In the United States, the diary will be under copyright protection until 2042.

Is there a place, where the diary is in the public domain?

okladka_anne frankFortunately, in Poland a special provision for extended protection for works published posthumously was removed in 1952.
Moreover, in 1952 the term of protection was reduced to 20 years after the death of the author. But in 2000—due to implementation of the Copyright Term Directive into the Polish law—copyright in the diary was reinstated. Since the general rule of the author’s lifetime plus 70 years should apply here, we believe that Anne Frank’s original writings (version A and B) are in the public domain in Poland since 1 January 2016. However, publishing those writings online may be illegal if the publisher can’t prevent cross-border access from countries where protection has not expired.

The rules of copyright duration and territoriality should be simple and unified

The Diary of Anne Frank is an excellent example why Europe needs a modern and progressive copyright framework. Currently, the rules for establishing the duration of the term of protection are so complex that we need the support of legal experts from different European countries just to determine whether an individual 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 efforts of organisations and entrepreneurs, who want to offer online products and services. Only an intervention at the European level can be remedy this situation. As we have repeatedly argued, the term of copyright protection should be reduced and fully harmonized and unified throughout the EU. If we want to fully unlock the potential of our rich cultural heritage we need clear rules that allow anyone to determine whether a work is still protected by copyright. This also includes making it clear that digitization of public domain works does not create new rights.

Graphic design of the project: Vivid studio, all works are available under Creative Commons CC0 1.0 Universal
The photo (of unknown author) from public domain was used.

 

7 thoughts on “Anne Frank and the Term of Copyright Protection: Why it’s Time to Move from Harmonisation to Unification

  1. I would like to provide some context to the decision of the Wikimedia Foundation (the organization that hosts Wikipedia and related projects) to remove the Dutch-language text of Anne Frank’s diary from WikiSource.

    The text removed from WikiSource was the diary as first published in the Netherlands in 1947 (‘version C), which will not be public domain in the United States until 2042. The decision of the US-based Wikimedia Foundation to remove the text from WikiSource was solely based on its copyright status in the USA. It is not connected to the claim that Otto Frank has copyright over ‘Version C’ of Anne Frank’s diary.

    That claim is not as uncontested as the blogpost suggests, and as far as I know has not yet been upheld by any court. Several experts on the writings of Anne Frank dismiss it, stating that the contribution of Otto Frank was not substantial enough to merit copyright. If they are right, Anne Frank’s diary as first published in 1947 became public domain in the Netherlands on 1 January 2016 after all…..

    And yes, harmonisation of copyright in the EU is long overdue!

  2. “As we have previously discussed”: not really. What makes you think that Otto Frank’s work on the 1947 edition passes the threshold of originality?

  3. @Federico: As Sandra points out the copyright claim has indeed not been tested in court yet. If you take a close look at the A and the B versions of the book and compare them with the C version you will see that C is not merely a cut and paste exercise of undertaken by Otto Frank. There were personal choices involved and with the relatively low threshold of of originality that we have in the EU it is possible that the claim that Otto must be considered a co-author can be upheld. In any case it would probably help if everybody interested in this matter would have access to the original writings (which is the point of today’s action).

    • I find it extremely unlikely that Otto Frank’s heirs will claim his co-authorship in court, hence I maintain that version C is in the public domain in most of the world. At most he can claim special “critical edition” rights, which e.g. in Italy are 20 years from publication.

      I do agree on the main point of your campaign of course, which is about version A and B. But I urge you to avoid hasty claims about the 1947 edition.

      By the way, it would be great to have a scan of the 1947 edition (a few copies exist in European libraries) and also to know when the German translator died. I wish her to have lived long but she was already 75 years old when the translation was published. https://de.wikipedia.org/wiki/Anneliese_Sch%C3%BCtz

  4. Note: in December 2015 the Amsterdam court clearly ruled that the 1947 book version of Het Achterhuis by Anne Frank (“Version C”) is now in the public domain.(http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2015:9312; esp. art. 4.3.3.: “Ingevolge de wetswijziging geldt echter dat de termijn is verlengd tot 70 jaar na het overlijden van Anne Frank.” (my translation: “Due to the change of law [in 1995] the term of copyright protection was extended to 70 years after the death of Anne Frank”. [i.e. 31 December 2015] This means that the Dutch text of Het Achterhuis (=The diary of Anne Frank, Dutch version 1947) is in the public domain as of 1. Jan 2016. Parts of Version A and Version B not published in 1947 are indeed still copyrighted, according to this ruling.

    I do of course wholeheartedly agree with the conclusion that European copyright law should be more unified, understandable and clear. To begin with: always 70 years after the death of the author (or 70y after anon. publ.) & freedom of panorama in all countries.

  5. Perhaps it is good to point out that the Wikimedia Foundation took this step because of the situation under US copyright, which is a whole new cup of tea…

  6. Pingback: #ReadAnneDiary (if you can) - EDRi