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The case of The Diary is complicated by the fact that the national laws of many countries treat older unpublished and posthumous works differently.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.
