The Diary of Anne Frank: claims of joint authorship, and their impact on the duration of copyright

Anne Frank tragically died at the age of 16 from malnutrition and typhus at the Bergen-Belsen Concentration camp in 1945. Her father Otto Frank was the only family member to survive their incarceration at the hands of the Nazis. He lived until 1980.

Surviving both of them is a literary legacy in the form of the book 'Anne Frank: The Diary of a Young Girl' (colloquially known as 'The Diary of Anne Frank'). Today, the Swiss foundation, Anne Frank Frond (AFF), owns the copyright in the book and Anne's original diaries, which were bequeathed to AFF by Otto Frank.

In mid-November, a number of Northern Hemisphere news agencies reported[1] on a rather ugly spat that has been brewing over copyright in the book and diaries.

Many in Europe expected that copyright in the book and diaries would expire on 31 December 2016, being 70 years after the end of the year in which Anne died. However, AFF has reportedly been contacting publishers in Europe saying that Anne was not, as previously believed, the sole author of her book and diaries, and that her father Otto was a joint author.

If true, the ramifications are significant. Joint authorship can directly impact the term of copyright protection, in this case enabling AFF to continue to control the right to reproduce the book and diaries for potentially another 35 years in Europe.

AFF's concerns seem to have been building for a while, judging by a post on its website in November 2014 stating:

It is wrong to assume that the copyrights to Anne Frank's Diaries would be due to expire in the near future, or that anyone would be free to use and publish them without permission from Anne Frank Fond... Anne Frank's original texts, as well as the in-print versions of the Diaries, remain protected for many more decades. 

In response to the question 'So when do the copyrights to the diaries expire?', AFF's website's Q&A page states:

...The in-print version of the diaries was compiled by Otto Frank shortly after the war from the two overlapping, but incomplete, versions of the diaries left by Anne Frank. In all countries we surveyed on this matter, experts confirmed that Otto Frank earned his own copyright to his compilation which will last for at least a further 50 or, in many countries, 70 years from the time of his death in 1980.[2]

Is this a case of a misunderstanding between AFF and the media? Or is there more at play? Unpicking this requires separate examination of who can be recognised as an author and working out how this applies to the diaries and the book.

Authors, joint authors, and the morbidly defined duration of copyright

The duration of copyright in books and other literary works is normally determined by reference to the author's date of death. How this is applied in practice varies from country to country.

To be considered an author of a work for the purposes of New Zealand copyright law, you have to be the person who creates it,[3] ie, the person who writes or directly contributes the text in the case of a book.

To be a work of joint authorship, there has to have been collaboration by two or more authors 'in which the contribution of each author is not distinct from that of the other author or authors.'[4]

Although the term of copyright varies from country to country, as a rule of thumb, copyright can last anywhere from 50 to 70+ years from the end of the calendar year in which the author of a book dies. Where two or more authors have worked together to create a book as joint authors, as a rule, copyright will generally expire anywhere from 50 to 70+ years after the last author dies.

AFF's blurred lines: was Otto Frank really a joint author?

Authorship of Anne's diary

From what we know, Otto Frank would not be considered a joint author of Anne's diaries in New Zealand. He did not collaborate with Anne when the she wrote her diaries and he didn't provide creative input either. Otto acknowledged this in the prologue of the first edition of the book where he stated that the book mostly contained Anne's words and was written by Anne while in hiding.

Both Anne Frank House (AFH) and AFF also agree. AFH says:

Is Otto Frank the co-author of the Diary of Anne Frank? No, Anne Frank is the sole author of the A and B versions of the diary and the short stories. Neither Otto Frank nor any other person is co-author.[5]

AFF says on its website that:

Copyright to Anne Frank's original texts originally belonged to the author, Anne Frank.[6]

Where the lines appear to be blurred is around the reproduction of parts of Anne's diaries in the book, and this is where the layers of different copyrights start to emerge.

Authorship of the book

Again, it is unlikely that Otto Frank would be considered a joint author of the book under New Zealand law, as there was no collaboration between Otto and Anne in the creation of the book.

However, if AFF is actually claiming that Otto is an owner of copyright in the book as a compilation, rather than as a joint or co-author, then this may hold some water.

Not everything in the book was written by Anne, nor is it an exact replica of her diaries. In fact, the book comprises:

• a prologue and epilogue written by Otto; and
• a mixture of shortened editionsof material Otto had carefully selected and arranged from Anne's diaries.

In New Zealand, copyright law recognises that copyright can subsist in a compilation of literary works. The author of a compilation is considered to be the person who gathers or organises the collection of material and who selects, orders and arranges it.[7]  

It's likely, therefore, that in New Zealand Otto would be considered the author of copyright in the book as a compilation, despite Anne being listed as the author on the cover.

This would enable AFF to prevent others from copying the prologue, epilogue and the selection, order, and arrangement of the extracts from Anne's diaries. However, AFF would not be able to stop anyone from using and reproducing material from Anne's diaries in any other way. 

Has copyright expired in New Zealand in Anne's diaries or the book?

Under New Zealand law, if Anne was the sole author of her diaries, then copyright in the diaries would have expired by the end of 1997.[8]

Even if AFF could argue that Otto was a joint author of Anne's diaries this wouldn't improve its position, as copyright would have expired in 1995 due to a quirk in the drafting of our Act,[9] which states that where a work of joint authorship is published before 1 April 1963 the duration of copyright is the longer of:

• the life of the author who died first (Anne in 1945) and a term of 50 years after her death; and
• the life of the author who dies last (Otto in 1980).

This would mean that (at least in New Zealand), copyright has expired in Anne's diaries, including those parts that were reproduced in the book.

In relation to the book, the only parts in which copyright will still subsist are:

• the prologue and epilogue; and
• the selection and arrangement of the extracts from the diaries.

The term of copyright in these parts would be determined by reference to the date of Otto's death (1980), meaning that copyright for the prologue, epilogue and compilation will expire in 2030 in New Zealand.

This will likely extend until 2050 as a result of the recently concluded negotiations for the Trans-Pacific Partnership Agreement. Under the TPPA, New Zealand will have to extend the duration of copyright for literary works from 50 to 70 years from the end of the calendar year in which the author dies. Assuming the TPPA is ratified, we can expect these changes to be implemented sometime in the next couple of years.

Conclusion

Generic or global claims, like those made by AFF, about the continuing existence of copyright should be made and treated carefully, since copyright laws are determined by local laws on a country by country basis.

The example of Anne Frank's diaries and book highlights the numerous complexities that can arise when it comes to establishing the duration of copyright in a book (or other literary works, like computer software), especially where there are multiple editions or authors. As this case illustrates, there can be different copyrights existing at different layers within a work that may have different expiry dates.

This will no doubt be mixed news for copyright owners like AFF, since the book is likely to still be protected as a compilation whenever the legislative changes come in to force, but it will not have any impact on copyright that has already expired, like that in Anne's diaries.

Disclaimer:this article contains general information about legal matters. The information is not legal advice, and should not be treated or relied on as such.