What does Anne Frank tell us about copyright reform?

Anne Frank campaign cover photo
#readannediary
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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).

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

Anne Frank campaign cover photo
#readannediary
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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”.

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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).

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What the diary of Anne Frank can tell us about Text and Data mining

Allegorie op de scheikunde
Copyright must not be used to thwart scientific research
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Recently, everybody has been busy discussing the question of whether the Diary of Anne Frank will enter (or by now, has entered) the public domain on January 1st this year (Answer: It’s complicated). Surprisingly, the discussions surrounding the copyright in Anne Frank’s writings may shed some light on another contentious copyright policy issue: text and data mining. These insights are the result of a recent ruling by the District Court of Amsterdam in dealing with a dispute between the Anne Frank Stichting (owner of the physical diaries and operator of the Anne Frank House in Amsterdam) and the Anne Frank Fonds (owner of the copyrights in Anne Frank’s writings).

The Anne Frank Stichting announced plans to publish an edition of Anne Frank’s texts online after the presumed expiration of the copyright on January 1, 2016. In response, the Anne Frank Fonds sued the Stichting over what it considered unauthorised reproductions of Anne Frank’s writings. The reproductions had been made by the Stichting as part of its preparatory research for the on-line publication after the new year. Initially, this seemed to be an attempt by the Fonds to thwart or delay the Stichting’s plans for an online edition.

However, during the course of the legal arguments it became clear that under Dutch law (which governs uses made by the Stichting), Anne Frank’s original writings would not enter the public domain in 2016. 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.

While this means that the Stichting had to shelve its plan to publish an online edition, the Fonds continued to press charges related to the reproductions (XML-TEI files) made by the Stichting in order to carry out its textual and historical research. The Stichting was sued alongside their research partner the Dutch Royal Academy of Science (KNAW). Both upheld the position that it did not require permission for making reproductions solely intended to enable its internal scholarship, claiming that copyright law should not be used to thwart scientific research. Continue reading

Invitation to Public Domain Day celebration in the European Parliament

Affiche Delftsche Slaolie
Celebrate Culture with us in the European Parliament
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Join us on January 25th in the European Parliament to celebrate Public Domain Day. This day falls on the first day of the new year and marks the term of copyright protection on creative works.

This new state for cultural works means that they are now free to be reused for new cultural, commercial, educational and innovative practices. During the lunch-event in the Members Salon we will talk about the value of the public domain in fostering Europe’s innovation capacities, by inviting creators to share how they use public domain works in their businesses and approach copyright.

Speakers include our host in the European Parliament Julia Reda (MEP, The Greens EFA – Germany), Alek Tarkowski (Director Centrum Cyfrowe), Paul Keller (Director Kennisland).

Please RSVP for this event to Lisette Kalshoven at lk@kl.nl

For more details please refer to the official invitation.

The Little Prince: almost in the Public Domain

This week is Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Today’s subject is the Public Domain.

Despite nearly 25 years of efforts to fully harmonise digital law in Europe, the road to a harmonised copyright system is certainly not a speedy highway. In fact, each Member State still has its own copyright system that applies within its own territory. One of the areas where this is most visible are the rules for determining when a particular work enters the public domain because the copyright term has expired.

The Little Prince 6th Antoine de Saint-Exupéry was killed in 1944, during a flight over the Mediterranean Sea. “The Little Prince”, his best-known book, is the third most popular novel in the world, translated into over 250 languages over more than 600 translations. More than 80 million copies have been printed. If you know a bit about the rules for determining when a work goes out of copyright, we can assume that on 1st January 2015 “The Little Prince” became part of the public domain. This is because in France copyright lasts for 70 years after the death of the author. And since Saint-Exupéry died in 1944, this would put “The Little Prince” into the public domain in France.

However, the harmonization of the duration of copyright is not uniform. In France, works of authors who died for France during the First and Second World Wars benefit from additional copyright protection. Copyright for works created by these authors is extended for an additional 30 years to compensate for the losses and difficulties in the commercial exploitation of their works during the war.

Beginning this year, “The Little Prince” is in the public domain almost everywhere in Europe. But in France, the novel will pass into the public domain sometime between 1 May 2033 and 1 January 2045, depending on your interpretations of the rules! Interestingly, Canadians have been freely using “The Little Prince” for the last 20 years, as copyright expires there 50 years after the death of the creator.

The French exception may seem surprising to you, but it’s not an outlier. There are multiple other such exceptions present in various European countries. When such irregularities are combined with inconsistent terminology within the European Directives (not to mention differences in the ways the Directives are implemented at the national level) along with unreliable information on the dates of death of the authors, we see we’re a long way from sensible harmonization of copyright law across Europe.

Fortunately, there is good news: establishing a single European framework that enables cross-border flow of products and services is one of the priorities of Jean-Claude Juncker, the newly elected President of the European Commission. The recent report by MEP Julia Reda on the evaluation of the Copyright Directive (2001/29/EC), and tweets made by Commisioner Oettinger and Vice-President Ansip about the need of new copyright rules, are all hopefully signs of coming change. We hope that we’ll be able to report about it during Copyright Week 2016.

(Paul Keller wrote about “The Little Prince” and the public domain on this blog in 2012).

Calculating the Public Domain

Many people recognise the value of works which are in the public domain and may even be familiar with many initiatives that provide access to public domain works (such as the Internet Archive, Wikimedia Commons, Project Gutenberg, etc). Yet, many people do not have a very clear conception of what the public domain is or why it is important.

New digital technologies make it possible for the public to access a vast quantity of cultural and historical material. Much of this material is in the public domain, and ongoing digitisation efforts mean that much more public domain material (in which copyright has expired) will be made available for the public to enjoy, share, and reuse.

However, it is often difficult to determine whether a work has entered the public domain in any given jurisdiction, because the terms of copyright protection differ from country to country. And  people are sometimes unclear about what can or cannot be done with works in the public domain. Copyright laws are complicated, and for the layperson it may not be clear how they apply in relation to a specific work. Though there are many international and multinational copyright agreements and copyright organisations, the exact details of copyright law vary from one country to another. Different countries have different legal systems and traditions – and copyright laws reflect these differences. Hence, given that works enter the public domain under different circumstances depending on the country, oftentimes the status of an individual work cannot be universally established. Rather, it needs to be evaluated on a case-by-case basis for every jurisdiction.

In order to make public domain determinations a less daunting task, the Open Knowledge Foundation has been working on the development of the Public Domain Calculators (http://publicdomain.okfn.org/calculators/) – a tool that enables people to determine the copyright status of a work (in the public domain, or not), thus helping users realize the value of artworks from the past.

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Commission announces public consultation on the review of EU copyright rules

Last week Thursday the European Commission launched its much anticipated public consultation on the review of the EU copyright rules. This consultation is the first visible sign of the second track of the Commission’s attempt to modernise the EU rules (the first track consisted of the rather unsuccessful Licenses for Europe stakeholder dialogue). In the words of the Commission the focus of the consultation is on:

… ensuring that the EU copyright regulatory framework stays fit for purpose in the digital environment to support creation and innovation, tap the full potential of the Single Market, foster growth and investment in our economy and promote cultural diversity.

With regards to the contents of the consultation, a first reading reveals a mixed bag of questions, with a surprising amount of them actually touching on issues that are closely related to our own policy recommendations. The consultation comes in the form of a 37 page document with a grand total of 80 questions that cover everything from the functioning of the single market for copyrighted works, linking and browsing, copyright term duration, registration of copyrighted works and exceptions and limitations for cultural heritage institutions, education, research, persons with disabilities and “user generated content”. In addition, there are questions about private copying and levies, the fair remuneration of authors and performers, respect for rights, and even the possibility of a single EU copyright title. Finally there is an open question for everything else that stakeholders might want to tell the Commission.

The deadline for providing answers to all of these questions is the 5th of February, which if one takes into account the upcoming holiday period is rather short.Continue reading

Happy Public Domain Day

On this day, 1st of January 2013, we do not only celebrate the beginning of a new year, but we also celebrate the whole variety of works, knowledge and information that, by entering the public domain, have become freely available to the world.

Given the limited term of protection granted by copyright law, a large number of works – whose authors died several decades ago – can no longer be owned by anyone and their use can no longer be constrained. They have become part of the common pool of knowledge that constitutes our cultural heritage and that can be freely used by everyone and for any purpose.

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The Little Prince and the Public Domain

so it’s the time of the year again where lists of authors who’s works will enter into the public domain on the 1st of january are compiled left and right. Generally these efforts work like this: you start a list of authors who have died in in the year ending 70 years ago (1942) and then compile them into a list and rank them by whatever criterion you wish to apply (notability, specific nationality, etc..).

While this seems rather straightforward it seems like a good opportunity to recall the underlying complexities of calculating copyright term duration: If you have a fast internet connection and a big screen, you may want to take a look at this 25 MB pdf, which depicts the decision trees for 30 european jurisdictions that power the public domain calculators on www.outofcopyright.eu.

The interesting thing about this PDF is not how complex it is in absolute terms, but rather that the subject matter depicted is supposed is something that the EU considers to be ‘harmonized’ (by the 2006 copyright term directive). As you can easily tell by glancing at the image above, copyright duration in the EU is anything but harmonised. In fact, as Christiana Angelopoulos, who compiled the information contained in the pdf, argues in a new paper, we are dealing with 27 different public domains for the 27 member states of the EU. Continue reading

The hangover after Public Domain Day…

This post by Lucie Guibault was first published on the Kluwer Copyright Blog and is reproduced here with kind permission of the author.

The New Year’s festivities are just behind us and with these the celebrations around Public Domain Day 2012 that took place in different cities in and outside Europe (Warsaw, Zurich, Turin, Rome, Haifa etc.).

2012 brings with it the joy of using James Joyce’s masterpieces without asking the estate for prior authorization (which more often than not met with a ‘no’ for an answer!). No one needs to be afraid of using the works of Virginia Woolf any longer! And the fans of Arsène Lupin, the French ‘gentleman burglar’, are now able to borrow – for good! – the ideas of its author, Maurice Leblanc. The works of several music composers are also free for reuse, including those of Frank Bridge and Johan Wagenaar.

The Public Domain Day IS important and SHOULD be celebrated annually, for it gives us the occasion to reflect on the significance of works of past authors and to measure the wealth of our common knowledge and culture. But unlike the New Year’s celebrations, however, those of the Public Domain Day do not attract much attention among the general public. Festivities of this sort are usually low-key, taking place in libraries, universities or cafés and gathering only the selected few of the well informed and culturally savvy.

Any cramped optimism concerning the public domain is further discouraged by the fact that the term of protection for copyright and related rights is 1) highly unharmonized across jurisdictions and 2) still being strechted beyond recognition through constant legislative action.

As an illustration of the first point, let me mention the case of world famous writer Ernest Hemingway (1899-1961) whose works have fallen into the public domain two days ago in Canada, but neither in his home country, the United States, or in Europe, where copyright lasts for the life of the author + 70 years.

In Europe, the calculation of the term of protection for copyright and related rights is rendered particularly complex due to the lack of proper harmonisation of the governing rules in EU jurisdictions. Although the adoption of the EC Term Directive was an attempt to alleviate disparities between the Member States, harmonisation gaps persist. As a result, the composition of the public domain will differ depending on the country in which protection is sought, as works fall out of copyright on different dates in different EU jurisdictions. This effect is illustrated in the Public Domain Calculators by the need for separate calculators, giving upon occasion very different results, for each of the 30 jurisdictions covered, including the 27, ostensibly harmonised, EU Member States.

In relation to the second point, 2012 will inevitably see the first pieces of national legislation emerge in the EU Member States towards the implementation of Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of copyright and certain related rights. Through this statutory amendment only sound recordings published or communicated to the public before 1941 will be free for use. In practical terms, this means that none, not even the early recordings, of Maria Callas will be available for re-use without prior authorization of the record company holding the rights.

Finally, the march towards term extension does not seem to have reached its limit if one only takes a look at the clauses contained in bilateral and mulilateral trade agreements currently negotiated by the United States. Article 4.5 of the Trans-Pacific Partnership, for example, would bring the copyright term of protection of signatory countries up to the American (and European) level, as has been the case in the past in the context of bilateral agreements (with Australia and many countries of Central and South America, to name but these).

These are very sobering thoughts indeed! If the alcohol fumes of the New Year’s party still had any effect, one could even be tempted, for simplicity’s sake, to just make copyright protection perpetual…