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Mein Kampf, The Diary of Anne Frank, and the Long Shadow of 20th Century Copyrights

· January 4, 2016

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In recent weeks, copyright-related controversies involving two Holocaust-era works—The Diary of Anne Frank and Mein Kampf—have received widespread media attention. The fact that these issues are arising now, 70 years after the end of World War II, demonstrates how copyright can be made to serve political ends long after the goal of incentivizing authors is relevant.

This past November, The New York Times reported that the Swiss foundation that owns the copyright in The Diary of Anne Frank, the Anne Frank Fonds, has notified publishers of its position that Anne’s father, Otto Frank, was the co-author of the Diary, and not just its editor. If Otto Frank was the co-author, the copyright term in the Diary expires in the European Union in 2050, 70 years after his death in 1980, rather than at the end of 2015, 70 years after Anne’s death in Bergen-Belsen in 1945. (Because the copyright term in the United States in works published before 1978 is tied to the date of publication, the term in the United States will last until the end of 2042, regardless of whether Otto Frank is considered a co-author.) This assertion of Otto Frank’s co-authorship could interfere with the plans of the Anne Frank House Museum in Amsterdam (a separate entity from the foundation) to post an annotated online version of the Diary after it enters the public domain.[1] According to the Times, the foundation and the museum have sparred over a variety of legal issues, including ownership of archives and trademarks. Notwithstanding the foundation’s claims, a French academic and a member of the French Parliament (but not the museum) posted the Diary online on January 1.

At the opposite end of the moral spectrum, the German copyright in Hitler’s Mein Kampf expired at the end of 2015. After World War II, Hitler’s assets, including his copyright in Mein Kampf, were transferred to the Bavarian government. The Bavarian government used the copyright to prevent the publication and distribution of the book in Germany. The copyright term in Germany expired at the end of 2015, 70 years after Hitler’s suicide in 1945. The Institute of Contemporary History has announced that it will publish an academic edition with hundreds of pages of scholarly commentary. At the same time, there is concern that neo-Nazi groups will distribute non-academic versions.

Mein Kampf remains in copyright in the United States until 2020. During World War II, the U.S. government seized the U.S. copyright in Mein Kampf pursuant to the Trading with the Enemy Act. Publisher Houghton Mifflin purchased the copyright from the U.S. government in 1979. The U.S. copyright will run until 2020, 95 years after the book’s publication in 1925.

In the United States, the purpose of copyright law is to provide authors with the economic incentive to create works for the public benefit. In Europe, this utilitarian rationale is supplemented by the belief that a work is an extension of an author’s personality, and that the author therefore has moral rights in the work, such as the rights of attribution and integrity.

The works here are unique, however. Neither author needed the incentive of copyright to create. Anne Frank wrote her Diary to record her private thoughts while in hiding, with no intention of subsequent publication. Mein Kampf expressed a racist ideology; the motivation for its publication was political, not economic. Both works likely would have been written had there been no copyright protection whatsoever. Arguably copyright protection was necessary to provide Dutch publisher Contact Publishing with the incentive to first publish the Diary in 1947, but such an incentive obviously is not needed for low-cost electronic distribution in 2016, such as that proposed by the Anne Frank House Museum.

The right of attribution likewise has no relevance to these works 70 years after their authors’ deaths; their significance derives from their connection to their authors. No one would purchase these books if they were published under someone else’s name. While the moral right of integrity (the author’s right to prevent unauthorized modifications of the work that could harm the author’s reputation) could conceivably continue to be important in the case of Anne Frank, Hitler was so evil that no modification of Mein Kampf could possibly harm his reputation.

Further, with both books the long term of copyright has been used to accomplish non-copyright objectives—what Matt Schruers has termed “IP immigration” in posts here, here, and here. The Bavarian government employed the copyright in Mein Kampf to prevent the book’s dissemination for decades. Regardless of the book’s odious nature, such censorship is not in the purpose of copyright law.

Additionally, the copyright in Mein Kampf had the effect of “sanitizing” the book in the United States. In 1933, Houghton Mifflin licensed the rights to publish an English language translation in the United States. In 1939, journalist (and later U.S. Senator) Alan Cranston concluded that the Houghton Mifflin version had excluded some of the book’s most anti-Semitic and militaristic passages, so he published his own, unexpurgated translation for the purpose of revealing Hitler’s true objectives. Cranston’s publisher was sued for copyright infringement, and the publication was enjoined. A description of the litigation is available here.

Copyright is also being misused in the context of Anne Frank. The foundation appears to be attempting to use copyright to assert its control over the image and meaning of Anne Frank. According to the New York Times, the foundation believes that the Anne Frank House Museum seeks to “transform[] Anne into a sort of child saint without context, an appealing icon of hope but one whose Jewish identity and place among the millions killed in the Holocaust are too little emphasized.” Assuming for the sake of argument that this complaint is true, remedying it goes far beyond the utilitarian goals of U.S. copyright law and even the moral rights provided under European copyright law. (As I discussed here, Martin Luther King Jr.’s heirs similarly are using the copyrights in his works to control his image.)

In the case of both works, copyright holders have employed the copyright to achieve policy objectives, rather than to promote authorship. Given the extraordinary length of modern copyright terms, these policy objectives cast a long shadow over contemporary understandings of 20th century history.

[1] Ironically, by claiming that Otto Frank is a co-author of the Diary, the foundation is undermining Anne Frank’s legacy. Holocaust deniers have long questioned the authenticity of the Diary, and the co-authorship claim at this point plays right into their hands.

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