The Diary of Anne Frank is expected to go into the public domain in the Netherlands this January. But in a startling and disappointing move the Swiss foundation that controls the rights to The Diary announced that it intends to assert copyright protection for decades after the proper expiration of the term. How? By relying on the role Anne’s father, Otto Frank, played in compiling the diary for publication to position him as a “co-author” and thereby extend the term significantly.

The legal details are tricky, but the upshot is that The Anne Frank Fonds—the foundation holding Anne’s copyright—is fighting to prevent the The Diary of Anne Frank from entering the public domain in Europe this January, seventy years after its author’s death in the Bergen-Belsen concentration camp.

This development is backed by a highly questionable legal theory that threatens authors’ rights, as well as a cynical view of the public domain. We want to set the record straight on both accounts.

Compilers are not co-authors

To the Anne Frank Fonds’ credit—and despite reporting to the contrary—no one appears to be claiming that Otto Frank was the co-author of The Diary in the sense of actually writing either the book or the original diaries. Instead, the Fonds notes that Otto Frank and Mirjam Pressler, each responsible for compiling and editing Anne Frank’s diaries into the published versions, are copyright holders in their “adaptations” of the original text. This much is true.

But the Fonds also takes things one step farther and argues that Otto Frank’s contributions to his adaptation also make him a co-author of the original work, the diaries famously written by his daughter. Can this possibly be right?

Of course not. Headlines and legal machinations notwithstanding, you remain the sole author of your work regardless of whether someone else compiles it for publication. The ramifications of any other answer would be deeply troubling for all authors. The rights of true co-authors are tremendously legally significant. Not only does co-authorship affect the copyright term; co-authors also take equal rights to the original work. In many jurisdictions, such co-authors may have perpetual and powerful moral rights in the work. Adaptors may take these rights in their adaptations, but not in the underlying original works.

The case of The Diary is complicated by the fact that the national laws of many countries treat older unpublished and posthumous works differently. Not all of Anne Frank’s actual diaries have been published; and those parts that were published were released at different times. Which portions of the original diaries fall into the public domain when, and where, will not be straightforward regardless of Otto Frank’s “co-authorship.” But by all accounts, much of the diaries should be in the public domain in many countries on January first, dubious assertions to the contrary notwithstanding.

Private control does not make for better stewardship than the public domain

Behind the attempt to extract extra copyright protection is the Fonds’ claim that it is the proper protector of Anne Frank’s legacy. But why should this be? There are many reasons that copyright terms end and creative work enters the public domain. One of the most compelling is that, after the very long time it takes for copyright to elapse, the public tends to be a better custodian of our collective cultural heritage than are the individuals and organizations that happen to hold the rights decades after an author’s passing.

The Fonds can claim that it does good work with the proceeds it earns from The Diary of Anne Frank. By all accounts it does. But we do not extend copyright terms as rewards for good behavior, and there are competing visions of how Anne Frank’s moving and important story might best and most powerfully impact a world that still very much needs her voice.

Indeed, the Fonds is far from the only institution carrying forth Anne’s legacy. The original diaries were left to the Dutch state, and are in the possession of Anne Frank House in Amsterdam. Anne Frank House has a different vision of how to do justice to the Diary and its author, and has been planning to make an “elaborate web version of the diary intended for publication once the copyright expires” according to the New York Times.

Allowing copyrights to properly expire at the end of their terms facilitates these kinds of creative public stewardship,  provides greater access to those works that have become indispensable parts of our shared heritage, and permits librarians, historians, and other expert curators to preserve the priceless intellectual legacies of true authors. It’s shameful to see a public-minded organization resist, rather than celebrate, the entrance of an important work to the public domain.

Under a court ruling this week, Warner/Chappell music publishing no longer gets a slice of every “Happy Birthday” cake. After years of litigation, a federal court in California has found that the company does not, in fact, hold copyright to the words of a century-old children’s ditty. “Happy Birthday” is quite possibly the most popular and enduring English-language song in the world, and it’s so much a part of our everyday lives that many are surprised to learn that it might be proprietary. Although the melody has long been out of copyright, Warner/Chappell has maintained a chokehold on the lyrics, making an estimated $2 million a year in royalties from people like Jennifer Nelson, a filmmaker who sought to make a documentary about “Happy Birthday” only to learn that Warner would charge her $1,500 to use it in her film.

The recent ruling was a qualified victory for the public domain. The court found that there was no evidence that the songwriters, Mildred and Patty Hill, ever transferred the rights to “Happy Birthday” lyrics. While this doesn’t conclusively establish that any copyright in the song has expired, it doesn’t seem likely that a new claim to ownership will emerge anytime soon—either because the song has been orphaned, or otherwise because it has actually been in the public domain all this time.

All of this legal wrangling over a six-note preschool song highlights many of the aspects of our copyright system that are most in need of change. Most importantly, we need to do something about the overly-long copyright terms that contribute to confusion about ownership and obstruct new works of authorship that would build on our shared cultural past.

Authors Alliance has advocated against further lengthening copyright terms in our Principles and Proposals for Copyright Reform and in our comments on ongoing trade agreement negotiations. In this case, the advanced age of “Happy Birthday” made it difficult to either verify or disprove Warner/Chappell’s ownership claim, while allowing it a copyright that would have extended to 2030 had it prevailed.

The amount of time and effort spent teasing apart the ownership of “Happy Birthday” also highlights the need for better information flows about copyright ownership. When work is in the public domain, the public deserves to be able to be confident in that assessment. When work is owned, authors and the public are best served by making the identity of the owner reasonably knowable. Warner/Chappell’s bottom line aside, no one was served by wrongly keeping “Happy Birthday” out of reach of singers, filmmakers, and anyone else who wanted to feature this ubiquitous little song in their creative work.

Authors Alliance is joining Creative Commons, the Electronic Frontier Foundation, Knowledge Ecology International, and New Media Rights in calling on the United States Trade Representative to ensure that the Trans Pacific Partnership Agreement (or “TPP”) doesn’t prejudice efforts to resolve the ever-worsening orphan works problem.

Orphan works—copyrighted works that can’t participate in contemporary culture because their ownership is either unknown or untraceable—have always been of special concern to Authors Alliance. Authors need access to the works of the past in order to craft their own contributions; and authors’ own intellectual legacies are diminished when their works become unavailable to others. As troubled as we are that our current system leaves millions of works to fall out of public view and use, we believe strongly that the orphan works problem is solvable, and are encouraged by the attention the United States Copyright Office has recently been giving the issue.

In order to see the orphan works problem solved, it is essential that we avoid making treaty commitments that would tie our legislators’ hands. We hope the Trade Representative agrees.

Read the letter here.

Authors Alliance Co-Founder Pamela Samuelson

The Copyright Office report on Orphan Works and Mass Digitization is an important step in the long road toward resolving the orphan works problem and seeing more of our cultural and intellectual heritage made accessible to the public and to authors who want to build upon this heritage.

Authors Alliance commends the Copyright Office for the serious attention it has given to this issue. We were glad to see that the Office regards the orphan work problem as “widespread and significant” and in need of policy resolution. We commend the Office for endorsing that the orphan work solution should apply to all types of works, all types of uses, and all types of users. We were pleased also to see that the Office accepts that fair use is and should be part of the solution to this problem and that the limitation on liability approach the Office proposes can co-exist with fair use as a solution to the orphan works problem in the United States.

Nevertheless, I am left with three reservations about the proposal: First, the Office proposes to condition eligibility for the limitation on liability approach on the user’s filing a very detailed notice of intent to use with the Copyright Office, which must include a description of the search conducted for the rights holder as well as what the intended uses are before any uses have been made. This may not be unduly cumbersome for major copyright industry firms, but for individual authors, particularly those whose motivation to write is more focused on contributing to knowledge than to make a lot of money, the notice-of-intent-to-use may be too difficult to comply with, particularly if the number of orphans that, say, an historian or anthropologist might want to use is substantial and if the exact nature of the uses have yet to be determined. The Office’s 2006 report did not include the notice-of-intent-to-use requirement.

Second, we should be concerned with the central role that the Office intends to play in developing standards for diligent searches for rights holders. Given the wide variety of works, users and uses that will be affected by the proposal, a one-size-fits-all search standard set by the Office may not provide the flexibility that would be desirable. Of course, a diligent search for rights holders should be required, and those who undertake lame searches should not qualify for limits on liability, but searches should be reasonable in light of the circumstances. A major motion picture studio that wants to make a movie of an orphaned short story should have to make a more rigorous search than an academic author who wants to use orphan works in a research project.

Third, it was disappointing that the Office was somewhat skeptical about the utility of codes of best practices for making fair uses of orphan works. These codes have been adopted through a rigorous and conscientious community processes, and provide greater guidance about fair use than can be had simply by studying the fair use case law.

Tackling problems of this scale is far from easy, but I am hopeful that, with the participation of Authors Alliance and other stakeholders, a fair and viable solution will not prove too far off.

Earlier this month the Copyright Office released its report on Orphan Works and Mass Digitization. Both of these topics are of special interest to Authors Alliance. We have taken public stands in the past to support mass digitization projects, like those at HathiTrust and Google Books that advance our members’ interest in having their works preserved, made searchable, and made accessible to the print-disabled. And we’re eager to see a solution to the orphan works problem that keeps so much of our cultural and intellectual heritage—even our own works—from participating fully in contemporary culture.

While Authors Alliance commends the serious attention and thought the Copyright Office has given these issues, we have some reservations about its reasoning and its proposed solutions. We will stay involved as these issues continue to work their way through the government, and will be filing a comment in response to the Copyright Office’s related inquiry regarding its proposed “pilot program” for licensing mass digitization projects. Our involvement will be particularly directed toward seeing that the following principles are adequately considered:

1. We need approachable solutions that anyone can understand and use.
2. Any solution for these problems must adequately take into account the diversity of author and rights holder interests when it comes to uses of their work. For many authors, and in particular for many Authors Alliance members, the best outcome is one that ensures their ability to take advantage of new avenues for reaching readers, especially when their preference is to do so under an open access license.
3. Solutions must not prejudice fair use rights.

Stay tuned as we will continue to post updates and further thoughts on the Report here on the Authors Alliance blog.