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