“No one has become poor by giving”. Anne Frank’s Diary, in front of complex Copyright Law issues.

by Maria Tsouvali

Seventy years after the end of World War II, many copyright issues arose regarding Anne Frank’s widely known book “The diary of a young girl”, which –accidentally- became available to the public domain on 1st January alongside Adolf’s Hitler autobiography the “Mein Kampf”. The Swiss foundation, established by Anne’s father Otto Frank, has strongly denied that copyright has expired, and has tried to follow different legal paths (such as trace mark registration) in order to keep exploiting Anne Frank’s diary a little longer.

As far as European law is concerned, copyright protection lasts 70 years post mortem. That means that 70 years after Anne’s death in Bergen-Belsen concentration camp in 1945, copyright protection has now elapsed. The Anne Frank Foundation claims Otto Frank to be co-author of the diary and subsequently of the literary work that is embodied in it. Their basic argument is that he edited the original edition to such an extent that it led to a work of joint authorship. But what does joint authorship mean in legal terms?

According to Section 26 and 37(2) of the Dutch Copyright Act[1], in cases where the work has not been made under the guidance of another person or one of the authors, and where the work has not been compiled from various works, two or more creators may be named as co-authors. There is no specific definition of joint authorship here, but through these negative definitions, one may assume that for joint authorship the contribution to the work must be equally significant by all co-authors. In that case, Otto Frank’s contribution did not constitute co-authorship if it was only by editing the original work.

On the other hand can Otto’s contribution be described as having true authorial originality?  As we already know the criterion of originality lies in the author’s own intellectual creation, as a result of ECJ harmonization decisions. Especially after the Infopaq decision, the level and the notion of originality radically changed. It is not just a “sweat of the brow” case.

“ It is only through choice, sequence and combination of [those] words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation”.[2]

Did Anne Frank’s father make such a contribution to the diary? And more importantly, were those contributions as significant as Anne’s so that Otto Frank can be named co-author? The copyright in the original version of the diary certainly should be solely owned by Anne. If the Foundation wants to support such a position in court then the family should provide evidence that Anne’s father directed words or thoughts in the diary or that his alterations were so fundamental that the diary should be considered a reflection of his own work. But isn’t a diary, by definition, something so personal that only one person could have written it?

In my opinion it is not only a matter of originality, or significance, but also a matter of moral rights, albeit only in those countries recognizing moral rights after the expiration of economic rights. It is a matter of historical significance and public interest that the right person is recognized as an author of such work, notwithstanding copyright law. Anne Frank’s diary is not just a best seller it is a landmark of world’s history and part of our social development as human beings.

Also, one might wonder what the rationale of copyright law is in this situation. It’s widely perceived that the law has drawn a certain timeline for copyright protection. This is because the law tries to mediate between private and public interests[3]. If we accept that Otto Frank has copyright in the diary, that will endure until 2051. Isn’t that a very long time for the public to be kept away benefiting from Anne Frank’s legacy? The law is here to balance conflicting interests, and this is the reason that copyright protection should not be further extended.

Copyright law sets boundaries and guards the author’s rights and work, but not so as to perpetually extend protection and economic benefits. As Anne said “No one has ever become poor by giving”. Anne’s Foundation should keep this in mind and offer that treasure-book its freedom.

Maria Tsouvali

Assistant Editor, QMJIP

[1] Ian Walden & Julia Hornle “E-Commerce Law and Practice in Europe”, (2011)Woodhead and Publishing Limited, Chapter 1, p.11.

 

[2]   Infopaq Int. v. Danske Dagblades Forening, Case C-5/08[2009].

[3] L.Bently & B. Sherman “Intellectual Property Law, Oxford University Press”(2014),Chapter 7,p.177.