A controversy that hit the IP world recently leaves many unanswered questions and potential changes our long established views about copyright duration and joint-authorship.
Under EU intellectual property law, copyright subsists during the lifetime of the author plus 70 years. If it is a work with more than one author, the 70 years will start from the death of the last surviving author. In the case of Anne Frank, who died in 1945, the copyright of her eponymous diary would therefore expire at the end of 2015, hence coming into the public domain.
The Anne Frank Fonds, which is the charitable foundation set up by Anne's father Otto after her death, currently owns the copyright to the diary, and is therefore the beneficiary of all royalties and other income generated from the work and its publication. That revenue stream would effectively come to an end when the copyright expires. The Foundation, however, recently announced that it has been established that, based on the editorial contribution to the work made by Otto Frank, he is effectively a co-author of the diary. As he died in 1980, this automatically extends the copyright protection of the work to 2050, hence extending the Foundation's right to copyright protection and collecting the revenue generated by the diary for a further 35 years.
Copyright extension is not something new, with the estates of various writers and world-renowned personalities having benefitted from specific legislation passed to prolong the most valuable copyright works, but using the argument of co-authorship to achieve this is something we have not come across. It inevitably raises a number of problematic questions.
- If editing a work equates to co-authoring it, where does that leave the many editors who have actively edited works to prepare them for publication?
- Where should the line be drawn between mere editing and co-authorship?
- If Otto Frank's contributions to the diary were so substantial that they amounted to co-authorship, why has this never been acknowledged and his authorship never attributed in earlier published editions?
- In attributing Otto Frank as a co-author, albeit being her father, is Anne's own moral rights and her primary contribution to the diary derogated, or even infringed?
Wonder what Kitty has to say about this?
“The longer they can claim copyright protection, the longer they can ask money for publication of the works,” said Stef van Gompel, a professor at the University of Amsterdam who specializes in copyright law.Six years ago, the foundation asked legal experts in various countries for advice on its copyright, according to Yves Kugelmann, a member of the foundation’s board. They concluded, he said, that Otto “created a new work” because of his role of editing, merging and trimming entries from her diary and notebooks and reshaping them into “kind of a collage” meriting its own copyright.