On copyright and the authorship of Anne Frank

This op-ed was originally published in Quill & Quire, Canada's magazine of the book trade.

Recently, The New York Times published a short article detailing what really should be a non-story: an additional time-limited term of copyright protection for The Diary of Anne Frank (known in some editions as The Diary of a Young Girl) is being asserted by the Anne Frank Fonds, the Swiss foundation granted these rights by Anne Frank’s father, Otto. The AFF believes it can extend a waning copyright term by recognizing the book’s compiler, editor, and prologue-writer as a co-author of the commercial text. It’s a legally interesting and elegant option for keeping a commercially viable work active and able to continue the good work it’s been doing now for many decades.

Since copyright is often measured using the lifespan of an author (plus a number of years to allow for effective estate bequests), co-author status for Otto Frank would extend copyright on the book another 35 years (the number of years Otto Frank lived past the horrendous death of his child). After that extension term, in 2050, the original commercial text would then enter the public domain.

Does this legal manoeuvre threaten your understanding of Anne Frank’s story or legacy? Does it mean you will not be able to access The Diary of Anne Frank? No, neither.

The fact that the AFF currently owns copyright to the commercial text of The Diary of Anne Frank means one thing and one thing only. If you want to publish your own version of the commercial text, you need to get a license to do so from the AFF. On its website, the AFF provides a helpful email address (info@annefrank.ch) for those wishing to obtain a license. Revenue generated by licensing of the text is used to further the goals of the AFF.

What are the goals of the AFF? Again, from its website: “Its aim is to represent the legacy and the family, and to make the diaries and works by Anne Frank accessible to the general public. All income from the copyrights of the diaries is used for educational or charitable projects.”

According to the Times, about $1.5 million in licensing revenues is distributed annually to charity.

Access, charity, education. All good, yes? Well, not if you listen to the increasingly angry and blustering anti-copyright crowd. A number of strident voices have been raised against the AFF’s plans for term extension, making startling accusations. The Times article details a few of the objections from that corner.

Agnès Tricoire, a French lawyer critical of the AFF’s term-extension, suggests the AFF may have been lying for years about the book’s authorship. Another lawyer, University of Amsterdam scholar Stef van Gompel, seems to imply the AFF intends to extend their control over the text “for all eternity.” Some folks are so upset at the idea of term extension they have threatened to defy the law and upload unpermitted copies of the commercial text to the Internet.

Is all this upheaval and upset the fault of copyright law? So we’re told, rather breathlessly.

Mike Masnick of techdirt, one of the web’s more prolific copy complainers, discusses the Anne Frank story in techdirt’s “Copyright-term-stupidity Dept.” Under a headline featuring the word “copyfraud,” Masnick writes, “Thanks to copyright law, the Foundation that holds the copyright on the book is now trying to add [Frank’s] father’s name as a co-author,” and then, in case we didn’t quite get that this is about copyright law, he adds “all because of copyright law.” Like Tricoire, Masnick questions the honesty of those at the AFF, writing, subtly, “they’re liars.”

Self-styled copy-fighter Cory Doctorow, writing two days before Masnick, also calls this incident a “copyfraud,” and he, as well, questions the honesty of the AFF, saying one of the AFF’s claims is “manifestly untrue.” After getting the extension end-date wrong by 20 years, Doctorow goes on to suggest the AFF’s term extension is part of a “20th century vogue for extending eternal exclusive rights,” picking up van Gompel’s inaccurate claim to “eternity” in the copyright extension. He then widens his thesis, getting very dramatic and populist in his objection, saying, “There is an undeniable cost to affording ownership to ideas.”

Let’s stop and pause right there for a moment.

This is a rare instance in my experience of rabid copy-fight rhetoric when I actually agree with Doctorow. There is indeed an undeniable cost to affording ownership to ideas, and if that’s what copyright law does, then I agree we have a real problem.

Except that’s not what copyright law does. Copyright does not protect ideas. It protects the unique expression of ideas. There’s a difference between those two things. Anyone writing about copyright who does not understand this incredibly important distinction has no business writing about copyright.

The story of Anne Frank is monstrously tragic and sad, and yet hugely transformative. Because that story was turned by Otto Frank into a unique expression called The Diary of Anne Frank, it is very unlikely that humanity will ever forget the name Anne Frank, or the lessons her story implants in every reading brain. I believe that outcome is an exceptionally good thing emerging from a deeply bad thing through the transformative power of expression and art. Such transformation is rare, and I’m willing to generously accept that the good agency of the AFF in keeping this work of art accessible and commercially alive has helped immensely with that process.

So why all the hyper-emotional quibbles over a simple term of copyright? Why the claims of fraud and lying? Why the embarrassing, misplaced outrage full of incorrect assertions about the law and, you know, what century it currently is?

I encourage everyone to examine the actual facts behind this story, and then ask themselves if indeed some terrible injustice is being perpetrated “all because of copyright law.” I can’t imagine anyone honestly concluding so.

The facts, as I understand them:

1. Is Anne Frank sole author of her diary?

I should think so. That’s a standard feature of diaries, no? But that diary and the book created from that diary are two different things. The first edition of The Diary of Anne Frank was published as Het Achterhuis (The Back House), and is clearly a work of creation that would not have happened without the agency of Otto Frank. Adding him as co-author to that work has no effect whatsoever on Anne’s actual diary.

2. Is the AFF controlling Anne Frank’s ideas?


3. Is The Diary of Anne Frank currently inaccessible?

No. Go to the library. Go to a bookstore. Order a copy online.

4. Will it be less accessible if its copyright is extended?

No. See above.

5. Can one access Anne Frank’s original diary?

Yes. It is on display at the Anne Frank House in Amsterdam.

6. Can I write about Anne Frank without asking for permission?

I’m doing so right now.

7. Is it impossible for someone to take the lessons of Anne Frank and create new work?

The many (many!) films, television mini-series, plays, academic papers, etc., created about Anne Frank since the publication of The Diary of Anne Frank suggest otherwise. For instance, a dear friend of mine, writer and actor, Carol Lempert, wrote After Anne Frank, a one-person show documenting her own tormented history of learning about Anne Frank, and then playing her and other characters from her life on the stage over a 30-year career in acting. After Anne Frank has played to stellar reviews at Fringe festivals, off-Broadway in New York City, and around North America. Yes, disputes and even legal wrangling sometimes occur where several works build upon a common story, but the idea that such disputes only damage culture does not compute. If that were true, these other Anne Frank works would not exist, and they do. Lempert’s play asks the question, “Who owns Anne Frank?” I suggest that very play’s existence proves we all own the idea of Anne Frank, collectively, even before the rights to that one specific commercial work expire.

8. Will some uses of The Diary of Anne Frank require a license?

Yes, until the copyright term ends. And the money from those licenses will go to charity.

9. Is it fraud to add a co-author credit to a book many years after its publication?

I don’t know, but it seems clear that everyone knew Otto Frank provided substantial creative work for the original book. Official co-author status will be a matter of legal interpretation. Whether or not Otto Frank requested a co-author credit in his lifetime is completely beside the point of asserting co-authorship now to benefit from term extension. Any claim that AFF lied about his co-authorship before seems entirely constructed. What possible benefit would there be from attempting such a lie when the elements of the co-authorship claim – curating, editing, writing a prologue – were common knowledge?

9. Will The Diary of Anne Frank be protected by copyright into eternity?

Of course not.

10. What is gained by spreading exaggerated and almost incoherent claims of misconduct about copyright in this instance?

If you ever find out, please let me know.