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Anne Frank’s Diary: The End for Kitty’s Copyright?

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About The Author

Samuel Cuthbert (Private Law Manager)

Sam read Philosophy at Durham University, followed by the GDL funded by the Lord Brougham Scholarship and a Hardwicke Scholarship from Lincoln's Inn. Sam is now spending a year, prior to undertaking the BPTC, to develop his legal interests in a paralegal capacity. His legal career is starting in a M&A paralegal role at a large Viennese firm. He is a passionate speaker and has his sights set firmly on a career at the bar.

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Only one thing is impossible for God: To find any sense in any copyright law on the planet

Mark Twain

Anne Frank’s diary, Kitty as she called it, has developed an immediate and intrinsic association with the atrocities committed by the National Socialists during the Second World War. Her diary documents the period spanning June 1942 to December 1944, and progresses from the Nazi occupation of the Netherlands through into the time she spent in hiding, with her family and close friends, in an annexed section of a factory owned by her father. Concealed by a bookcase, they remained in hiding for two years and a month until they were betrayed and sent to Bergen-Belsen concentration camp.

Anne’s diaries, written in three separate volumes, were gathered shortly after the family were arrested by close friends and lifelines Miep Gies and Bep Voskuijl. Her father, the only to survive of those who evaded capture in the annex, physically cut and pasted the diary together. He founded “the Anne Frank Fonds” (AFF) and later designated it as his sole heir, allowing it to receive the copyright for the diaries.

However, there has recently been a challenge to that copyright. A number of publishers hold that the copyright discontinues at the end of this year and, as a result, there is scope to publish the diaries in an online format. The central issues, as are made out more fully below, focus on who can be considered to have authored a work and the duration of the copyright thereafter. This article will consider the merits of such a claim in the setting of English law, using it as a vehicle to explore the various requirements of authorship made out hereunder. It should be noted that this approach is entirely hypothetical, as the issue is not subject to English Law.

The Basics

Section 1(1) Copyright Design and Patents Act 1988, provides that copyright is a property right which subsists in original literary, dramatic, musical or artistic works.

The AFF have stated on their website that:

It goes without saying that copyrights to Anne Frank’s original texts originally belonged to the author, Anne Frank herself. Two versions of the diary have been published: one in 1947, compiled by Otto Frank, and one in 1991, compiled by Mirjam Pressler…

There is little doubting that Anne Frank authored an original literary work that subsisted in the form of her original diary entries; this is a non-issue for the purposes of this article.

The issue is whether either:

  1. Otto Frank’s subsequent compilations constitute an independent original work; or
  2. His compilations makes him a joint author of Anne Frank’s diaries.

However, before these issues are discussed, I cover the relevance of these questions: the period of protection.

Period of protection

It is true that within the EU, the period a copyright remains valid varies from country to country. And whilst a European directive has been passed with the intention of streamlining copyright protection across Europe, copyright decisions are still determined at a national level, and so domestic statutes carry more weight. This is because the directive requires member states to maintain previously existing terms of protection which reach beyond the more general measures codified in the directive. The UK’s seventy year protection period, rather than the fifty year period specified in the directive, provides an accessible example of that.

However, the period of seventy years commences upon the death of the author of the literary work. The AFF allege that, in virtue of the work he invested into collating the diaries into an accessible format, Otto Frank can legitimately said to have been a co-author. If this is accurate, the period of protection begins at his death, the much later year of 1980, and the challenge currently being faced by the AFF mounted by academics and charities, would not arise for another 35 years.

S12 Duration of copyright in literary, dramatic, musical or artistic works:

(1)The following provisions have effect with respect to the duration of copyright in a literary, dramatic, musical or artistic work.

(2)Copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies...

[…]

(8) The provisions of this section are adapted as follows in relation to a work of joint authorship—

(a)  the reference in subsection (2) to the death of the author shall be construed—

(i) if the identity of all the authors is known, as a reference to the death of the last of them to die, and

Therefore, if Otto is to be considered an author or joint author, copyright would expire at the end of the period of 70 years from the end of the calendar year in which he dies.

Authorship

The AFF have not sought to assert sole authorship of distinct copyright; instead they are asserting that Otto was a joint author of the work, which is discussed further below. However, how might the argument follow under English law if the AFF were to assert that Otto was a sole author of a distinct copyrighted work?

Section 9 CDPA 1988 states:

(1)In this Part “author”, in relation to a work, means the person who creates it.

Clearly, it was Anne Frank who originally created the text itself, and therefore would be the author of the original literary work. The question is therefore whether Otto’s choice of extracts from the diary, and act of pasting them together, was original enough to create a new work in which distinct copyright subsists. Whilst the text of Anne’s diary itself was clearly not original as utilised by Otto, to what extent can the role of an editor, as Otto seemingly was, ever attract distinct copyright?

‘Sweat of the Brow’ Doctrine

The case of Walter v Lane concerned an ‘editor’ of a speech. The principle we take from it is the sweat of the brow doctrine. The reference is to whether the person in question had invested sufficient amounts of effort into the disputed piece, in order for sweat to appear on their brow owing to the stresses of such work. The case from which the principle is taken has a number of similarities as the case in hand.

The case centred on a complaint grounded in the Copyright Act 1842. A reporter recorded several speeches delivered by the Earl of Roseberry in shorthand before going on to transcribe them, adding in grammatical technicalities, and corrections as he did so. The transcribed speeches were published in The Times and later featured in a book published by the defendant, about which the claimant took issue. The extent to which the reporter could be seen to be an author under the 1848 statute was the problem put to the court.

The judge found for the claimant in the Court of Appeal, a decision later overturned by the House of Lords. Lord Halsbury LC said the law does not permit:

one man to make profit and appropriate to himself the labour skill and capital of another.

In order to avoid such a situation arising, the court held that the reporter must be recognised as an author, and that the labour which had been put into the transposed speeches needed protecting too. The labour, which comprised grammatical skill and literary precision was sufficient to rebut a claim of copyright infringement.

This was summarised by Lord Brampton who contended:

The preparation [of the reports] involved considerable intellectual skill and brain labour beyond the mere mechanical operation of writing.

Of significance in this case is the dissenting judgment of Lord Robertson, who used the analogy of phonographs. Much skill is required to capture high-resolution sounds, but that doesn’t make the individual manning the phonograph the author of the music. The parallels between this case and that of Anne Frank’s diary are clear, even if sound recordings now have specific protection under S5A Copyright Design and Patents Act 1998. Salient too is the dissenting reasoning given. (More information on this case can be found in this book)

With that in mind, the question in this case then becomes: did the work Otto Frank committed to the diaries of his daughter in fashioning them into a publishable form constitute ‘considerable intellectual skill and brain labour beyond the mere mechanical operation of writing?’ Is the labour reminiscent of that carried out by a phonographer, or a reporter transposing a speech?

The latter appears the more pertinent parallel, the labour intensive cutting and pasting of the diaries seems less skilful than the application of the reporter’s grammatical expertise.

Therefore I would come to the unsurprising conclusion that Otto Frank’s compilation of the diary can not attract distinct copyright. Anne Frank was clearly the author of the original work. Both Otto’s compilation and Mirjam’s complication may however have attracted protection as typographical arrangements.

Typographical Arrangements

Following sections 1(1)(c), 8, 9(1), 15, and 16(2) CDPA, such a case may be considered a typographical arrangement, owing to the assembly work done by Otto Frank. “The typographical 'edition' is the product between the covers of a publication (such as a newspaper) which a publisher offers to the public”, and following s15, this copyright would stay for 25 years from publication.

It is this status that most publishers enjoy over collated works, and which allows them the sole right to a particular arrangement of works. Such a copyright would, in England and Wales, have stayed the 25 years following the publication of Anne Frank’s Diary in 1947. However, this copyright would have expired in 1972, imploring this hypothetical debate back into the realm of whether or not joint authorship may be established.

Further, copyright in typographical arrangements protects only the arrangement of the work, i.e. the way it is displayed on the page. The literary work in Anne Frank’s original text would still expire at the end of this year. Therefore, even if the copyright in the typographical arrangement had not expired, whilst publishers would be unable to photocopy the diary and put it online in the same form, they could still transpose the words themselves into an online format.

The AFF’s best hope is therefore joint authorship.

Joint Authorship

The argument is further made out that the process of compiling the diaries into a publishable format afforded Otto Frank the status of co-author, thus facilitating his having a legitimate copyright; the copyright would then stay the seventy year period following his death, finishing in 2050 rather than imminently.

However, Annemarie Bekker, spokeswoman for the Anne Frank Stichting, (which runs the massively popular Anne Frank House and its archives) disputes the legitimacy of such a claim:

Is Otto Frank co-author of the diary of Anne Frank? No, Anne Frank is the sole author of the diary versions A and B [her own, edited version], and the short stories. There is no co-author in these writings, not Otto Frank or any other person… they are and remain exclusively Anne’s diary entries and short stories.

The seminal case of Levy v Rutley saw Keating J initially define joint authorship as "a joint labouring in furtherance of a common design", and moreover, state that there can be no finding of joint authorship in a copyright work in the absence of a common intention to that effect. This has since been expanded into the aforementioned statute, which provides further direction:

s10 Works of joint authorship:

(1)In this Part a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.

(3)References in this Part to the author of a work shall, except as otherwise provided, be construed in relation to a work of joint authorship as references to all the authors of the work.

It seems unlikely, knowing that Otto Frank’s input was no more than selection and assembly of diary entries written by Anne Frank for purposes not including publication of a joint work with her father, that one would succeed in arguing co-authorship in this case. Such a contention is reinforced by the findings of Hadley v Kemp. This case saw three members of Spandau Ballet claiming co-author status in respect of a number of songs composed solely by the keyboard player. It was held that their contribution as performers and in developing the songs once written was insufficient to warrant co-authorship of copyright in the songs. This makes the case for Otto Frank’s co-authorship less likely still; his input was similarly an assembly of another’s work with a selective approach taken to the task, such a contention is even supported by the wording used on the AFF website which details his role as ‘compiling’ the diary.

Moreover, that establishing co-authorship depends on the contributions of each author not being distinct makes such a claim less credible still. It is very clear, if only in virtue of the time period between writing and publication, that the work was completely distinct.

It is therefore suggested that Otto’s work would not grant him co-author status under English law.

As a concluding remark, I submit that any skill and labour, which may be attributed to Otto Frank’s production of the diary in a bid to establish co-authorship and a stayed copyright, could also be countered by the public interest in having Anne Frank’s diary widely available on the internet to warn and inform of the atrocities of the Second World War. This cements my position on the likely outcome of this claim were it to be issued in an English court. As such, I would suggest that the end to the period of protection is imminent.

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Tagged: Commercial Law, Intellectual Property

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