From: Sandy Thatcher <[log in to unmask]>
Date: Mon, 23 Nov 2015 22:50:51 -0600

Yes, an Act of Congress can restore copyright to public-domain works,
but I wasn't talking about Congress; I was talking about an individual
being able to do so.

Clearly, the lawyers want to keep copyright in the published edition
in force. I was talking about making the diary as written available
once it becomes public domain.  I see no way in which the lawyers can
prevent a facsimile edition or transcribed version from being freely
distributed.

It is not enough, by the way, that Otto Frank can be shown to have
done editing of the diary.  That "sweat of the brow" ceased to be a
ground for a copyright claim in the US after the 1991 Feist decision
by the Supreme Court. It is that decision that made it impossible any
longer for publishers to claim copyright protection for "critical
editions" of authors who died more than 70 years ago.  Yes, the
critical apparatus can be protected, but not the text itself as edited
by scholars.

Sandy Thatcher



> From: Kevin Smith <[log in to unmask]>
> Date: Mon, 23 Nov 2015 10:36:37 +0000
>
> As far as making sense is concerned, Mark Twain once wrote that the
> only thing impossible for God was to make sense of any copyright law,
> so your idea of what makes sense may not be a standard by which to
> judge this case.  If it were as simple and straightforward as you
> suggest, groups of Swiss and Dutch lawyers would not be dedicating
> billable hours to fighting over it.
>
> Your first point about the public domain is incorrect on two counts.
> As a factual matter, the Diary is not in the public domain.  Its
> copyright is set to expire this year, 70 years after Anne Frank's
> death, and it would enter the public domain on January 1, 2016.  So
> the case is not about bring it back from the public domain; the
> frantic efforts of those lawyers are about preventing it from becoming
> public property in a few weeks by extending the copyright term.  And,
> in any case, it is possible to pull things back from the public
> domain, as we know from the Supreme Court, which upheld the law that
> restored copyright in foreign works that were PD in the U.S. Due to
> failure to follow formalities.  This is why the public domain needs to
> be carefully guarded.
>
> Kevin L. Smith, M.L.S., J.D.
> Director of Copyright and Scholarly Communications
> Duke University Libraries
> Durham, NC 27708
> [log in to unmask]