From: Kevin Smith <[log in to unmask]>
Date: Mon, 16 Nov 2015 13:06:16 +0000

Jim raises some important considerations, and I would add two more points.

First, the copyright in Anne Frank's Diary will not expire next year
in the U.S. regardless of the outcome of this dispute.  Because of the
multiple changes we have made to our copyright term, and especially
the awkward transition from a term of years to life of the author
plus, the Diary is protected in the U.S. for 95 years from publication
regardless of the death date of the author.  So even if a court
decides not to accept the claim of co-authorship, the U.S. copyright
will not expire until sometime after 2040.  All of Jim's question
about incentives for authors and the public interest are magnified
when we realize that the U.S. could be protecting a work, and our
courts involved in enforcing that protection, years after that work
that is (potentially) in the public domain everywhere else.  What
sense does this make in a digital age?

Second, a colleague recently raised an important point that I want to
pass on to this group.  We should, perhaps, look askance at efforts to
assert co-authorship after the death of the original, recognized
creator of a work.  If we look back at the case involving the musical
Rent and the posthumous effort (unsuccessful) to claim co-authorship
with Jonathon Larson, it is clear that there is a fundamental
unfairness when someone arises after the death of the recognized
creator and asserts a claim of co-authorship at a point where
important evidence, especially about intent (which is an element of
co-authorship in the U.S.), is no longer available.  In the Anne Frank
case, the claim is made on behalf of a putative co-author who is also
deceased, so the evidence problem is even worse; this is manifestly
nothing more than an attempt to continuing collecting rents on one of
the 20th century's most important and best-selling books.  But, in
other situations, the same technique could be used in a way even more
clearer averse to the interests of the deceased author.  It makes me
wonder if courts should limit such actions to assert co-authorship to
the period during which the already-recognized author is still alive,
so that once the "plus" period begins (whether it is 50, 70 or 100
years) it will run its course without disturbance.  Such a rule could
protect the interests of authors in many cases, and would also provide
some certainty of expectation for those who might want to use the work
when it comes out of copyright.

Kevin

Kevin L. Smith
Director, Copyright & Scholarly Communication
Duke University Libraries

-----Original Message-----
From: "Jim O'Donnell" <[log in to unmask]>
Date: Sun, 15 Nov 2015 08:59:16 -0700

Some will have seen this in the New York Times:

Anne Frank’s Diary Gains ‘Co-Author’ in Copyright Move

http://www.nytimes.com/2015/11/14/books/anne-frank-has-a-co-as-diary-gains-co-author-in-legal-move.html

The narrow question is whether her father's editorial intervention
entitles him to status as co-author and thus extends copyright to 70
years past his death (in 1980); otherwise the work would go into the
public domain this year.  There are other issues, not least the
competition between two foundations, one in Basel, one in Amsterdam,
the latter of which has been planning a web edition of the diary, open
access, to appear when the copyright expires.  The father's foundation
in Basel that owns the copyright supports work to eradicate prejudice
and racism and offers medical support for holocaust survivors and
surviving individuals who protected Jews in Nazi times.  I can find
only a German wikipedia article:
https://de.wikipedia.org/wiki/Anne_Frank-Fonds

So there conflicting legal and ethical views of this.  I would offer a
strategic question.  For the years 2015-2050 (the extension based on
the father's date of death), what advances the beneficial effect to be
gotten from this near-miraculous survival of a text that has meant
much to many:  the dedicated application of the foundation's profits
or the extended audience for the book?  I am persuaded for the latter,
mainly because I worry so much about the disappearance from cultural
view of much of the heritage of the 20th century if we do not succeed
in making the books of the 40s, 50s, 60s available in networked
digital form.  Does an author's estate do the author and his/her work
more good by collecting royalties or by making the work more widely
known and accessible?  Even Anne Frank could be forgotten:  what would
prevent that most effectively?

Jim O'Donnell
ASU