The famous Diary of Anne Frank has recently been in the news in relation to a controversy surrounding the duration of its copyright protection. In this guest post, Monica Ezsias from Maastricht University argues that the Diary should be allowed to fall out of copyright as of 1 January 2016. An earlier version of the post was first published on the Intellectual Property and Knowledge Management Blog of Maastricht University.

The Anne Frank Fonds was established by Anne Frank’s father, Otto Frank, as a charitable foundation dedicated to spreading Anne’s words, as well as to providing medical care. It is this organisation that possesses the rights in The Diary of Anne Frank, as well as other works such as Anne’s letters and photographs.[1] The diary is currently protected by copyright in the EU, but this protection is due to cease as of 2016: generally in Europe, copyright in a work runs for 70 years after the death of the author.[2] That period is calculated as of 1 January of the year following the one in which the author died – in this case, 1945.

There are indications that the Foundation wants to maintain its control of the Diary. They claim that their aim is to make sure that “Anne Frank stays Anne”[4], by preserving the integrity of her words. If they are not allowed to do so, the Foundation claims, there will be a surge of adaptations and publications and arguably, in a few decades, the essence of her Diary will eventually be lost. The Foundation’s website indicates that they consider her work to be further protected. According to this:

“It should not be assumed that the copyrights to Anne Frank’s Diary are due to expire in the near future, or that anyone will be free to use and publish the diary without permission”.[5]

Certainly in the US the term of protection will continue past 2016. US copyright rules relevant to the Diary depend the term on the date of first publication, so that the Diary’s copyright will not expire till the end of 2047, 95 years after the book was first published in 1952.[6] In Europe on the other hand, the term of protection depends on the date of first publication only in cases of anonymous or pseudonymous works: according to Article 1(3) of the Term Directive [7], where the author is not identified by name or uses a pseudonym, the term of protection shall run for 70 years after date at which the work was first made available to the public. That is not the case here.

Nevertheless, the Foundation has signalled that it is seeking to extend the Diary’s copyright protection in Europe by declaring that Otto Frank was, not only the editor, but also a co-author of the published Diary. While currently there seems to be no specific statement to that effect on the Foundation’s website, the claim has been reported by a variety of outlets in recent weeks, perhaps in worry of the approaching deadline of 2016. The move would be vaguely reminiscent of similar copyright extensions effected in the past. In the US, for instance, the Copyright Term Extension Act 1998 itself was brought into force to harmonise the US copyright term with that of Europe. The act is now also referred to as the “Mickey Mouse Protection Act”[8], as it prolonged the term of the valuable copyrights held by the Disney corporation, which petitioned in favour of the new law.[9]

Some cynicism likewise surrounds the notion that Otto Frank co-authored the Diary. The Foundation maintains that the diary underwent such significant editorial changes by Anne’s father, that he should be considered a co-author. If this suggestion is accepted, the copyright would be automatically extended up till the end of 2051, 70 years from the 1 January after the death of Otto, in 1980.[10]

The following should be borne in mind in relation to the extension of copyright…

Does Otto’s remodelling of the original diary qualify for copyright protection?

It is an accepted fact that Otto’s role was in editing and publishing the book. The Foundation has recently stated that Otto “created a new work” by merging, trimming and reshaping entries into a “collage”, contributions which thereby deserve their own copyright protection.[11] While “own intellectual creation” can be considered quite a high standard, it could be that Otto has provided an original expression.[12] But can we go as far as saying he embedded his “own personal touch” into the diary?[13]

Co-authorship should have been acknowledged sooner

If Otto amended his daughter’s diary to such a degree that he can be considered to be a co-author, this raises questions as to the authenticity of the Diary as a whole. How much of what we read was actually written by Anne? The claim of co-authorship, placing as it does in the back of readers’ mind the idea that Anne’s father changed paragraphs, cut things out, perhaps also added his own flare to the text, takes away from the experience of reading the book as one of absorbing the feelings of a young teenager in hiding. The situation may have been different if the book had been published from the beginning as a vastly edited version of the original diary as written by Anne. If such drastic changes however were made to Anne’s diary as to qualify Otto as a co-author, surely the public have, until now, been misled? It is one thing for Otto to have refrained from sharing every one of his daughter’s thoughts (something which the public can probably appreciate), but it is another to rewrite any part of it or take pieces from here and there and merge them together. Further, the timing of these arguments for co-authorship does make them appear as an attempt to limit the revenue from copyright strictly to the Foundation. If Otto really was a co-author, the public may have been able to accept this if it were the case from the beginning, but to vocalise such claims only when the expiry of copyright is nigh is nothing less than suspicious.

The Foundation should not be able to argue that they are seeking to preserve the Franks’ integrity by extending the Diary’s copyright protection

The Diary should now be considered as belonging to the world. The arguments on its authorship take away from and overshadow the importance of sharing the realities of life in hiding during the WWII. Furthermore, claiming that Anne merely co-authored her own diary arguably offends her memory.[14] Would Otto Frank have wanted to go down this route..? If the Anne Frank Huis Museum – a different body from the Foundation – would want to publish their own findings, interpretations and analysis of the Diary on their website for all to read, should not they be able to do so?

History has not been rewritten just because accounts of events are no longer copyrighted

Historical facts are not dependant on copyright protection. The world is not going to forget about Anne Frank or lose sight of what she went through in hiding simply because her work is due to fall out of copyright. The Diary has enjoyed its term under copyright protection and should be allowed to enter the public domain as of next year.

On the other hand, there are people that deny the Holocaust; it is arguably perhaps in the interest of future generations that The Diary of Anne Frank be further protected, so they do not end up believing Anne was a fictional character, a mere representation of how people in general suffer during wartime. Seen from this perspective, it is possible to appreciate the view according to which, by prolonging copyright protection, the essence of the Diary might have a better chance of surviving, unaltered by the interference of others.

[1] Anne Frank Fonds

[2] Article 1(1) Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights

[4] D Carvajal, “Anne Frank’s Diary Gains ‘Co-Author’ in Copyright Move”, The New York Times (13 Nov 2015)

[5] Anne Frank Fonds, “Q&A about the copyrights to Anne Frank’s Diary”

[6] The New York Times (n 4)

[7] Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the Term of Protection of Copyright and certain Related Rights

[8] See, for example, R Deazley and ors, “Privilege and property. Essays on the history of copyright” (2010) Legal Information Management, 257

[9] J Philips, “Copyright term, authorship and moral rights: the intriguing tale of Anne Frank’s Diary”, IPKat (18 Nov 2015)

[10] Article 7bis, Berne Convention for the Protection of Literary and Artistic Works

[11] The New York Times (n 4)

[12] Infopaq Int v Danske Dagblades Forening, Case C-5/09 [2009]

[13] Eva-Maria Painer v Standard VerlagsGmbH and ors, Case C-5/08 [2009]

[14] J Block and ors, “Matter of rights: Was Otto Frank really Anne Frank’s co-author?”, Pittsburgh Post-Gazette (18 Nov 2015)

Monica Ezsias is an LLM student in Intellectual Property Law and Knowledge Management at Maastricht University. She graduated with a First Class LLB from a UK university in 2015.

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