COPYRIGHT THEORY IN ACTION – VICTORY IN EUROPE EDITION

Sherman tanks of 5th Guards Armoured Brigade pass an American jeep in Antoing, Belgium, 3 September 1944. BU 392 Part of WAR OFFICE SECOND WORLD WAR OFFICIAL COLLECTION No 5 Army Film & Photographic Unit Laing (Sgt)

This year marked the 70th anniversary of the end of World War II. The commemorations seemed rather muted to me, perhaps because of the inevitable demographic decline of the greatest generation, or perhaps because platinum just doesn’t have the same cachet as silver, gold or diamond. But for copyright mavens 70 years is an especially meaningful number because many copyrights “subsist” for the life of the author plus 70 years. (This is generally the case in Europe, but only for copyrights on works created since 1978 in the United States.) As allied troops were liberating Europe in the spring of 1945, two notable European authors died–Anne Frank of typhus in the Bergen-Belsen concentration camp, and Adolf Hitler by suicide in his Berlin bunker. With the European copyrights on Anne Frank’s diary and Hitler’s Mein Kampf set to expire on December 31, we are once again seeing copyright theory in action.

Ironically, the more benign of these developments involves Mein Kampf, Hitler’s mid-1920s memoir-cum-manifesto. After the war the copyright to the book was awarded to the State of  Bavaria, which chose to ban it rather than profit from its dissemination. But the New York Times reports today that upon expiration of the copyright “a team of historians from a noted center for the study of Nazism, the Institute for Contemporary History in Munich” will  publish “a two-volume, 2,000-page edition, a three-year labor complete with about 3,500 academic annotations.”

Copyrights are awarded for limited times with the intent that works will eventually enter the public domain and be freely available for projects such as this. This is especially welcome in the case of a work of historical importance, however odious, that has long been suppressed by the copyright owner. In my limited travels in Germany, I have been impressed by the forthrightness with which the German people are dealing with their Nazi past, and I am confident that ready availability of Mein Kampf will have no untoward consequences.

Anne Frank’s diary, of course, has been an international literary juggernaut since its publication in 1952, and royalties from book sales and movie and theatrical rights have long sustained its copyright owner, the Anne Frank Fonds, a Swiss foundation. Expiration of the European copyright would undoubtedly reduce this income stream substantially. The foundation’s solution involves another wrinkle in copyright law: When a work has co-authors, the copyright term lasts until 70 years after the death of the last of the co-authors to die. Lo and behold, the Times reported a few weeks ago, “Anne Frank’s Diary Gains ‘Co-Author’ in Copyright Move.” The belatedly acknowledged co-author is Anne’s father, Otto, who survived his daughter by 35 years.

Otto, in his lifetime, insisted that the diary consisted of Anne’s words, but if this posthumous claim of co-authorship being asserted on his behalf survives likely court challenges, it would extend the European copyright to 2050, very possibly preventing the publication of scholarly editions of the diary that have long been in preparation. However laudable the charitable purposes of the Anne Frank Fonds, its copyright extension gambit strikes me as unworthy of, and possibly quite damaging to, the legacy with which it has been entrusted.

 

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