Dutch court confirms that manuscripts diary Anne Frank remain protected in 2016 and beyond

On 23 December 2015, a civil court in Amsterdam, the Netherlands, confirmed explicitly that the copying or publishing Anne Frank’s original manuscripts after 2015 constitutes an infringement of copyrights that belong to the Swiss Anne Frank Fonds. The court made clear that permission of the copyright owner remains necessary in order to publish the original writings of Anne Frank.

Anne Frank died in the Bergen-Belsen concentration camp in 1945. Under general copyright law, the rights to her works would expire on 1 January 2016, 70 years after her death. However, as the Anne Frank Fonds has explained before, exceptions to this law apply to Anne Frank’s diary (see http://www.annefrank.ch/qa-en.html).

Under Dutch copyright law, a work first published posthumously before 1995 remains protected for 50 years after the initial publication. The court confirmed that Anne Frank’s manuscripts were first published in 1986 in a scholarly critical edition, and that the manuscripts will therefore remain protected until 1 January 2037. Similar rules apply in many other countries, including France and Commonwealth countries. In the US, the diaries will also remain protected for several decades.

The Anne Frank Fonds says: “The court’s decision confirms that the Anne Frank Fonds is effectively the custodian of the work and memory of Anne and the family Frank. The Foundation aims to safeguard, together with its partners, that the diary is published authentically all over the world. As instructed by its founder, Otto Frank, the Fonds will keep supporting scholarly work, education and charity. This is another ruling that directly sustains and honours the legacy of the family Frank, and respects the wish of Otto Frank for the Anne Frank Fonds to decide on any publication of the diary.” 

Different versions of the diary

Anne Frank wrote two versions of her diary: the first was started in the famous red checked notebook, and the second one was a revision of the first, written with a view to publication at a future date. After the war, Otto Frank decided to fulfil his daughter’s wish of having the diary published. He amalgamated his daughter’s two incomplete, fragmentary, and partially overlapping manuscripts into a reader friendly version. Otto Frank’s text omitted large parts of the originals: for example, he left out half of Anne Frank’s first version.

It goes without saying that the original manuscripts were written, in their entirety, by Anne Frank herself. This was confirmed in the 1980s by the Netherlands Forensic Institute. The version that Otto Frank created after the war is the one that was in print from 1947 to the 1990s. During his lifetime, he kept Anne Frank’s manuscripts to himself. Only in 1986 in the scholarly critical edition published by the Anne Frank Fonds were the originals, including the large parts that Otto Frank did not use in his version, released in their entirety for the first time. For this reason, the Amsterdam court has confirmed that the copyrights to Anne Frank’s manuscripts will not expire in the immediate future.

Infringing online publication

In 2011 the Anne Frank Stichting, together with the Royal Dutch Academy of Sciences, announced that the original manuscripts would be published on-line after 2015. The Anne Frank Fonds notified both parties that the unauthorized publication would infringe its copyrights. Nevertheless, the Stichting and the Academy refused to confirm that they would cease and desist from publishing the manuscripts after 2015, which left the Anne Frank Fonds with no choice but to resort to the courts.

According to the court, de defendants have committed not to publish Anne Frank’s manuscripts integrally before the rights have expired, without the permission of the Anne Frank Fonds. Therefore, the court felt that it could not award the Fonds’ claims to prohibit the Stichting and the Academy of Sciences to publish the web-edition. The explicit commitment was only made at a very late stage during the proceedings. Nevertheless, the decision clarifies that the permission of the Fonds is needed by the defendants for publication of the integral manuscripts. Indeed, the Anne Frank Fonds invites all parties who want to work on public projects with the texts, to apply for a license.

 Freedom of research

The materials submitted to the court show that the defendants were warned in 2011 by their own legal advisors that the making of copies in preparation for the on-line version of the diary even before the general term of protection (which is life plus 70 years) had expired, would always infringe copyright. They nevertheless decided to go ahead and make the unauthorized copies anyway.

The Anne Frank Fonds has asked the court to treat the Stichting and the Academy like any other infringing party, who under Dutch law would normally be ordered to destroy all infringing copies produced, even if such party was unaware that the copies were made unlawfully. This is to prevent such copies turning up somewhere later and giving rise to further damage. As stated above, the Anne Frank Stichting and the Royal Dutch Academy of Sciences intentionally violated the Fonds’ rights by deciding to, long before 2016, start making copies in preparation for their publication. Indeed, they deliberately accepted the risk of having to destroy the unauthorized preparatory copies.

However, the court ruled that the copies need not be destroyed, because, in view of the freedom of research guaranteed by the EU Charter, such would be disproportionate. An important factor in this ruling is that the defendants have said that they only make available the copies internally to a just few researchers, and therefore the impact on the Fonds’ copyrights would be minimal.  

Considering that the defendants, and in particular the Anne Frank Stichting, have been shown to ignore the law, the Anne Frank Fonds doubts the sustainability of this ruling. The Fonds would very much regret if the academic projects and publications it supports were jeopardized by the publication of an infringing copy, and is considering whether to appeal against the ruling.

Fourth case between parties

This is the fourth instance in recent years where courts have been called upon to rule on a dispute between the Swiss Fonds and the Dutch Stichting.

  1. On 1 June 2012 the Court of Hamburg, Germany, found that the Stichting had infringed the Fonds’ copyrights by publishing a comic book version of the diary without the Fonds’ prior consent, and by falsely claiming that it could authorize the use of Anne Frank’s copyrights.

  2. On 26 June 2013, the Amsterdam Civil Court ruled that the Anne Frank Stichting had violated the Anne Frank Fonds’ rights to tangible property by refusing to return a great number of documents and pictures loaned to it by the Fonds. The Stichting even claimed ownership to the items after it had received them. The court ordered the Stichting to return all the property to the Anne Frank Fonds.

  3. On 10 June 2015, the Amsterdam court decided that the Anne Frank Stichting had infringed the Anne Frank Fonds’ copyrights to Otto Frank’s writings by exhibiting a number of his letters without authorization. The Anne Frank Fonds had notified the Stichting that prior consent was necessary for any use of the letters. The Anne Frank Stichting chose to ignore this and put the letters on display without consulting the Fonds. The Amsterdam court confirmed that the Stichting had violated the Fonds’ rights.

  4. The ruling of 23 December 2015 by the Amsterdam court is the fourth and latest case. The Anne Frank Fonds sincerely hopes that the Dutch Stichting will in future refrain – at an earlier stage – from violating the Fonds’ rights and obviate the need to go to court.

 Anne Frank Fonds

The Anne Frank Fonds was founded in 1963 by Otto Frank, Anne Frank’s father and the only family member to survive the concentration camps. He appointed the Fonds his universal heir and legal successor. As such, the Anne Frank Fonds owns all of Anne and Otto Frank’s rights and represents the Frank family. When Otto Frank died in 1980, the Fonds assumed the role of custodian of Anne Frank’s writings and memory.

It is the Fonds’ duty to grant or deny licence applications for the use of Anne Frank’s works and to ensure that they are used respectfully and appropriately, and that no inferior products are brought into circulation. The Anne Frank Fonds authorizes many uses of Anne Frank’s works, some for a fee, but also many free of charge. Over the last 50 years the foundation has authorised and supported numerous projects, plays, books, films, performances and educational projects to ensure that the many interpretations of Anne Frank’s texts do justice to the diary.

The Fonds is run by an honorary, unpaid board with a small office in Basel, where the continuous stream of licence requests is processed. As instructed by Otto Frank, the Anne Frank Fonds uses the proceeds of the copyrights exclusively for charity, good causes and educational projects all over the world. The Anne Frank Fonds supports many projects and initiatives. For example, at the special request of Otto Frank, the Fonds pays the medical bills of scores of people who helped Jews during the Second World War. The Anne Frank Fonds has also entered into a long-standing and world-wide cooperation with UNICEF.

A further recent initiative is the Anne Frank Research Project, which has been set up together with the renowned Fritz Bauer Institute in Frankfurt, the main German institute for Holocaust Studies, and the Lichtenberg-Kolleg of the University of Göttingen, and includes many other universities around the world. This new international academic project has resulted in papers by experts from many countries, and in a new and updated critical edition that is soon to be published by Cambridge University Press (see http://annefrank-researchproject.eu).

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