One evening during the Second World War, four years into the German occupation of the Netherlands, a teenaged Jewish girl in Amsterdam listened to a BBC broadcast where an exiled Dutch politician called on his compatriots to preserve evidence of life under the Nazis.
The 14-year-old girl had been keeping a journal while she hid with her family in an attic. She started rewriting her entries, hoping to turn them into a published book after the war. That decision would eventually contribute to making Anne Frank’s The Diary of a Young Girl one of the world’s most widely read books.
But her rewriting also planted the seeds for a legal paradox today, seven decades after Anne and her sister died of typhus at the Bergen-Belsen concentration camp.
On Jan. 1, Adolf Hitler’s autobiography, Mein Kampf, will enter the public domain in Europe where the term of protection ends 70 years after the death of a work’s author.
The Nazis’ most famous victim, Anne Frank, died the same year as Hitler – 1945. Yet the Swiss-based foundation that is the universal heir to the Frank family says the copyrights for the various versions of her work won’t expire for decades.
“This would be an unfortunate glitch in history,” said Olivier Ertzscheid, a professor of information sciences at the University of Nantes in France. “It belongs in the public domain. It is part of our collective memory and heritage,” he said in an interview.
Prof. Ertzscheid and some of his colleagues recently posted digital versions of the diary online, to protest the fact that there is still no unrestricted access to Anne’s book. It has been a debate where the complexities of copyright law and the new dynamics of the digital age have clashed with the emotionally fraught legacy of the most famous victim of the Holocaust.
On one side stands the Anne Frank Fonds, a non-profit organization located in the Upper Rhine Swiss city of Basel. It was created in 1963 by Anne’s father, Otto. The Fonds administers the rights to all writings by Anne Frank and says that copyright is crucial to protect her work from unchecked commercial exploitation.
On the other side are digital-rights activists who believe that, seven decades after Anne’s tragic death, her diary should be available for anyone to use without permission. On their websites, they criticize the Fonds for maintaining its grip on a literary work that has been translated into 60 languages and now belongs to the world.
The foundation’s copyright claim is “completely surreal,” wrote Lionel Maurel, a curator and library manager for the Université Paris Ouest Nanterre La Défense. “There comes a point when the absurdity of the rule of law deserves to be met with acts of civil disobedience.”
The legalities in the case of Mein Kampf are more straightforward. The state of Bavaria inherited the copyright in 1945 after the dissolution of Eher-Verlag, the Munich-based Nazi publishing house. No one is disputing that the European copyright on the book will run out in January. Rather, the debate has been whether to pre-empt the change by issuing critical, scholarly annotated versions, as publishers in Germany and France plan, or to trust that letting the book into the public domain will expose its dull, delusional content.
Because copyright is country-based, the Boston publisher Houghton Mifflin Harcourt (HMH) says it holds the U.S. rights to Mein Kampf until 2022. Its final volume was published in 1927, and U.S. law provides a 95-year copyright term for foreign works published between 1923 and 1977, said HMH spokeswoman Emma Doherty.
Adolf Hitler does not appear as an author in the HMH website. Its catalogue order form discreetly lists the author of Mein Kampf (available in paperback and hardcover) as Konrad Heiden, a Jewish German who fled the Nazis and wrote the introduction to the U.S. translation. Revenue from its sale go to charity, Ms. Doherty said.
The copyright issue for Anne Frank diary’s is more thorny. There were several versions of the diary, commonly designated by the letters A, B and C.
The A version was the original diary that Anne started a few weeks before her family and four Jewish acquaintances went underground in July, 1942.
In March, 1944, she heard the exiled education minister Gerrit Bolkestein on the BBC urging the Dutch to preserve their letters and diaries. So Anne began rearranging and rewriting her journal, creating the B version. Acting on an anonymous tip, the Gestapo raided the secret annex in August, 1944, and deported the Frank family to Auschwitz. Only her father, Otto, survived.
After the war, he recovered the papers that had been left in the annex and created a third version, combining the remains of the A and B versions. He also removed some entries that were too critical or intimate. That C version was the basis for the first published edition in 1947.
“He merged them, he cut them and he changed them. So he created a new book,” Yves Kugelmann, a trustee at the Anne Frank Fonds, said in an interview, explaining that the foundation considers Otto a co-author. Since Otto died in 1980, the Fonds says the copyright on the first published version of the diary will be in force until 2050.
As for the diary’s original versions, they weren’t published until after Otto’s death with the release of a critical edition in 1986. So in that case, Mr. Kugelmann said, the copyright for the original versions is in place until 2056.
The Fonds also says that there is copyright for later versions edited by the German writer Mirjam Pressler, who is still alive.
In Canada, generally speaking, the term of copyright subsists for 50 years after the author’s death, or 50 years after first publication of a literary work first published posthumously. So whether the diary is already in the public domain in Canada depends whether one agrees with the Fonds’ position that Otto is a co-author.
“They’re raising a creative argument … this is what copyright law is. They are free to articulate their position and posture that people are required to observe their wishes,” said Kevin Sartorio, an intellectual property litigator at the law firm Gowlings.
“All they need to do is to raise an argument so that people who are risk-averse may not want to use the work,” he added.
The translators also own the copyright to the translated versions, said Johanna Coutts, an Ottawa lawyer also specializing in intellectual property law.
“Each copyright is considered separately so while one creator’s copyright may expire, another’s may continue to subsist,” she said.
The diary was first translated in English in 1952 by Barbara Mooyaart, who is now 96.
Mr. Kugelmann said the Fonds’ holding on to the copyright has helped it thwart some of the tawdrier uses of Anne Frank’s writings. The foundation has vetoed proposals to have diary excerpts appear on T-shirts, jeans and coffee mugs. It even had to nix a pitch for a horror movie.
“You have an organization which is really taking care of the diary and making sure that it is published in a very authentic way, with high integrity,” he said.
The foundation only has three part-time staffers and all the income goes to charity and education projects, Mr. Kugelmann said.
He would not say how much the foundation receives in royalties.
In 1996, after a court dispute between the Swiss-based Fonds and the Dutch organization that manages the museum at the site of the Amsterdam hiding annex, a trustee for the Fonds told the New York Times that “we have roughly 10 million” Swiss francs. He didn’t specify whether he was talking about assets or operational budget.
About a month after he posted the diary online this fall, Prof. Ertzscheid and others who emulated him received a letter from Le Livre de Poche, a subsidiary of Hachette, the publisher that held the licence for the French translation of the book. Faced with legal threats, they removed the diary from their websites. But Prof. Ertzscheid said he planned to post the diary again on Jan. 1, when he considers that its copyright will have expired.
He quoted from her writing: “No one has ever become poor by giving.”Report Typo/Error