Diary of a young girl and her father? Copyright expiration
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11 Dec 2015
The Diary of Anne Frank is one of the most famous literary works ever. It is thus not surprising that the literary world is poised for the copyright in it to expire, so that the work can be published, adapted, reproduced, or performed, without first having to obtain the consent of the copyright owner – consent that usually comes with a hefty price tag. It would, however, seem that the monetary benefit is exactly what is enticing the Anne Frank Foundation (the Foundation) to try and extend the copyright in the Diary of Anne Frank in countries where national copyright law might allow this. The Foundation may have good reason for doing so, as all of the money raised by it is donated to charitable organisations.
The Foundation and/or its lawyers have adopted an interesting strategy to extend the copyright, by claiming that Ms Frank’s father was a co-author to the book. If this were true, the duration of the copyright in terms of European law would be extended, as it would now be calculated from death of Ms Frank’s father, who died 35 years after her passing.
In terms of South African law, in order for Mr. Otto Frank to be able to qualify as a co-author of his daughter’s book, the Foundation would be required to show that any contribution that he might have made to his daughter’s book, was material. The published version of the diary was apparently compiled by Otto Frank after World War 2, using two incomplete and overlapping diaries that were left by Anne Frank. The Foundation would need to show, as a matter of fact, that the degree of editing done by him was material, and that his input considerably added to the finished product. The problem with arguing that Otto Frank made a material contribution to the creation of the published product is that it may cast an unwanted shadow over the book by questioning whether the words contained in it are those of Anne Frank, or her father. A major contributing factor to the book’s popular appeal, is that it describes WWII events through the eyes of a young girl.
Moreover, in terms of South African law, it would not assist the Foundation to extend the duration of the copyright by claiming that Ms Frank’s father co-authored the book. Copyright in a literary work expires 50 years from the end of year in which the author dies, provided that it has not been published, or made available to the public. If the literary work is only made available to the public after the author dies, then the copyright only expires 50 years after the literary work was first published.
In the case of joint or co-authorship, the 50 years would run from the end of the year following the death of the last author. If, however, before the death of the last author to die, the literary work has already been published, the copyright would run for a period of 50 years from the end of the year in which the work was first published.
In the circumstances and given that the diary of Anne Frank was first published in the Netherlands in 1947, the copyright in it, according to an application of South African copyright law, would have already expired in 1998.
Alicia Kabini is a Partner in the trade mark enforcement department. She specialises in trade mark litigation, including oppositions, cancellations, domain name disputes, company name objections, passing off matters and... Read more about Alicia Kabini