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Op-ed: Extending copyright to The Diary of Anne Frank is wrong

AnneFrankOn Nov. 27, Quill & Quire published an op-ed by John Degen, executive director of the Writers’ Union of Canada, in support of extending the copyright term of The Diary of Anne Frank by naming Frank’s father, Otto, as co-author. The following is a rebuttal.

John Degen describes the Anne Frank Fonds’ attempt to extend the copyright term of The Diary of Anne Frank by claiming Otto Frank as co-author as an “elegant” move worthy of support. It is not. It is a tactic that is inimical to the integrity of authorship, hurts authors, shortchanges the public, and deserves the public protest it has engendered.

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

Compilers are not co-authors

Authors in particular should be concerned about the fonds’ claim because the distinction between co-authors and creators of compilations and adaptations is of tremendous legal significance. Not only does co-authorship affect the copyright term; co-authors also take equal rights to the original work. In countries such as Canada, where authors also have important moral rights, co-authors share those rights as well. We need to be extremely careful about who receives co-authorship status, as a misstep can dilute and prejudice the rights meant to be reserved to the creators of original work.

To be clear, this does not mean Otto Frank or someone in his position who may edit or compile works written by others are not authors for copyright purposes. Rather, they can be authors of distinct works, namely, in their respective original contributions. In Otto Frank’s case, this would be his particular selection from and arrangement of the original diaries along with his editing of the text. Otto Frank’s contributions were not an act of joint authorship with his daughter; they were independent acts, that, if sufficiently original, deserve an independent copyright with an independent copyright term.

But these rights – which are straightforward and well established – are not what the Anne Frank Fonds is claiming. Instead, it take things one step farther and argues that Otto Frank’s contributions also make him a co-author of the underlying original work: the diaries famously written by his daughter, or at least those parts of them published in The Diary of Anne Frank. This claim is unprecedented and deeply problematic. In Canada, for example, a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors. The claim that the personal diaries of a teenage girl were actually not her own individual work, but a work jointly produced with her father seems not only prejudicial to Anne Frank’s memory and to her authorial integrity, but might also irrevocably tarnish its authenticity. A work written jointly by a girl and her father will likely be read differently from a personal diary written by a little girl.

Moreover, the claim that editors or compilers can be viewed as joint authors, if successful, will not be limited to the surviving fathers of author daughters. If left unchallenged, we would likely see it adopted by publishers, who will be more than happy to assert that their editorial contributions put them on equal legal footing with the original writers.

Why would the fonds make this questionable claim if it might already have a copyright in Otto Frank’s published version? Because it would rather not see copies of Anne Frank’s original diaries, or new adaptations of those original diaries, in competition with those versions it continues to control. Essentially, the theory is the legal linchpin that would, in the Fonds’ words, see “Anne Frank’s original writings, as well as the original in-print versions . . . remain protected for many decades.”

Anne’s legacy is not threatened by 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 many decades after an author’s passing.

The fonds can claim it does good work with the proceeds it earns from The Diary of Anne Frank. By all accounts it does. But copyright terms are not 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 diaries and their author, and has been planning to make a web version of the original diaries freely available to the public after the expiration of the copyright.

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 better 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.

Michael Wolfe is the executive director of Authors Alliance – an organization founded in 2014 by legal scholars and academic librarians to promote “authorship for the public good by supporting authors who write to be read” – and a copyright research fellow at the University of California–Berkeley.