Efforts by the Anne Frank Foundation to Prevent Anne Frank’s Diary from Entering Public Domain

Copyright term in several countries, including the United States and European Union, go far beyond international standards.  The current term is set at the life of the author plus seventy years and this lengthy term severely harms the public domain and contributes to the orphan works problem.  Some past blog posts on copyright term can be found here (myths and facts) and here (term and the public domain).

This copyright term, which extends well beyond the life of the author, has no policy justification.  In fact, according to the UK-commissioned independent review of copyright by Ian Hargreaves:

Economic evidence is clear that the likely deadweight loss to the economy exceeds any additional incentivising effect which might result from the extension of copyright term beyond its present levels. This is doubly clear for retrospective extension to copyright term, given the impossibility of incentivising the creation of already existing works, or work from artists already dead. Despite this, there are frequent proposals to increase term . . . The UK Government assessment found it to be economically detrimental. An international study found term extension to have no impact on output.

Despite the fact that copyright term is unacceptably long, where a work is still profitable many years after an author’s death, the current rightholders will seek ways to extend term further.  The New York Times recently reported that the Anne Frank Foundation is doing just that by claiming that the her father was a co-author and the copyright term should expire 70 years after his death in 1980, rather than Anne Frank’s death in 1945.  Thus, Anne Frank’s diary would not enter the public domain on January 1, 2016 (70 years after Anne Frank’s death), but would instead be extended another 35 years and would not enter the public domain in Europe until January 1, 2051.  (NB: The copyright term would not be affected in the United States, because United States copyright law grants a 95 year copyright term for foreign works published between 1923 and 1977).

Otto Frank, Anne Frank’s father, claimed in a prologue to the published diary that the diary was written by his daughter.  However, according to the New York Times article, the Foundation is claiming that Otto Frank “‘created a new work’ because of his role in editing, merging and trimming entries from her diary and notebooks and reshaping them into ‘kind of a collage’ meriting its own copyright.”

There are several absurdities to this story.  First, Otto Frank could have claimed co-authorship during his lifetime, in the decades between the publication of the diary and his death, but never appears to have done so.  The Foundation could have claimed co-authorship soon after his death in 1980, but instead waited until just six years ago to seek copyright advice, seemingly motivated by the fact that the work’s copyright term is set to expire at the end of this year.  It seems bizarre to allow the Foundation to now try to claim copyright on behalf of a man who never tried to do so during his lifetime, and which it never sought to do in the several decades after his death.  This move appears solely motivated by the royalties the Foundation will lose when the work enters the public domain.

Additionally, as pointed out by Mike Masnick of TechDirt, “who in their right mind thinks that copyright was the ‘incentive’ necessary for Anne Frank to write her diary?”  Justice Stevens, in his 2003 dissent in Eldred v. Ashcroft pointed out the absurdity of copyright extensions in incentivizing the creation of works:

No potential author can reasonably believe that he has more than a tiny chance of writing a classic that will survive commercially long enough for the copyright extension to matter. After all, if, after 55 to 75 years, only 2% of all copyrights retain commercial value, the percentage surviving after 75 years or more (a typical pre-extension copyright term)—must be far smaller. Seesupra, at 248; CRS Report 7 (estimating that, even after copyright renewal, about 3.8% of copyrighted books go out of print each year). And any remaining monetary incentive is diminished dramatically by the fact that the relevant royalties will not arrive until 75 years or more into the future, when, not the author, but distant heirs, or shareholders in a successor corporation, will receive them. Using assumptions about the time value of money provided us by a group of economists (including five Nobel prize winners), Brief for George A. Akerlof et al. as Amici Curiae 5-7, it seems fair to say that, for example, a 1% likelihood of earning $100 annually for 20 years, starting 75 years into the future, is worth less than seven cents today. See id., App. 3a; see also CRS Report 5. See generally Appendix, Part A, infra.

What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account? The Court itself finds no evidence to the contrary. It refers to testimony before Congress (1) that the copyright system’s incentives encourage creation, and (2) (referring to Noah Webster) that income earned from one work can help support an artist who “`continue[s] to create.'” Ante, at 208, n. 15. But the first of these amounts to no more than a set of undeniably true propositions about the value of incentives in general. And the applicability of the second to this Act is mysterious. How will extension help today’s Noah Webster create new works 50 years after his death? Or is that hypothetical Webster supposed to support himself with the extension’s present discounted value, i. e., a few pennies? Or (to change the metaphor) is the argument that Dumas fils would have written more books had Dumas père‘s Three Musketeers earned more royalties?

Copyright term is currently too long.  Allowing rightsholders to claim co-authorship, decades after the deaths of the actual author as well as an alleged co-author, as an attempt to extend copyright term further is a blatant and unacceptable attack on the public domain motivated solely by attempts to demand more royalties.  The Diary of Anne Frank should enter the public domain at the end of the year as it is currently scheduled and be made free for people to read, and for historians and researchers to use and study.