Wikimedia Foundation removes The Diary of Anne Frank due to copyright law requirements

AnneFrankSchoolPhoto
Anne Frank in 1940. Photo by Collectie Anne Frank Stichting Amsterdam, public domain.
Today, in an unfortunate example of the overreach of the United States’ current copyright law, the Wikimedia Foundation removed the Dutch-language text of The Diary of a Young Girl—more commonly known in English as the Diary of Anne Frank—from Wikisource.[1]
We took this action to comply with the United States’ Digital Millennium Copyright Act (DMCA), as we believe the diary is still under US copyright protection under the law as it is currently written. Nevertheless, our removal serves as an excellent example of why the law should be changed to prevent repeated extensions of copyright terms, an issue that has plagued our communities for years.

What prompted us to remove the diary?

The deletion was required because the Foundation is under the jurisdiction of US law and is therefore subject to the DMCA, specifically title 17, chapter 5, section 512 of the United States Code. As we noted in 2013, “The location of the servers, incorporation, and headquarters are just three of many factors that establish US jurisdiction … if infringing content is linked to or embedded in Wikimedia projects, then  the Foundation may still be subject to liability for such use—either as a direct or contributory infringer.
Based on email discussions sent to the Wikimedia Foundation at legal[at]wikimedia.org, we determined that the Wikimedia Foundation had either “actual knowledge” (i in the statute quoted below) or what is commonly called “red flag knowledge” (ii in the statute quoted below) that the Anne Frank text was hosted on Wikisource and was under copyright. The statute section states that a service provider is only protected by the DMCA when it:

(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(The rest applies when we get a proper DMCA takedown notice.)

Of particular concern, the US’ 9th Circuit Court of Appeals stated in their ruling for UMG Recordings, Inc. v. Shelter Capital Partners LLC that in circumstances where a hosting provider (like the Wikimedia Foundation) is informed by a third party (like an unrelated user) about infringing copyrighted content, that would likely constitute either actual or red flag knowledge under the DMCA.
We believe, based on the detail and specificity contained in the emails, that we received that we had actual knowledge sufficient for the DMCA to require us to perform a takedown even in the absence of a demand letter.

How is the diary still copyrighted?

You may wonder why or how the Anne Frank text is copyrighted at all, as Anne Frank died in February 1945. With 70 years having passed since her death, the text may have passed into public domain in the Netherlands on January 1, 2016, where it was first published, although there is still some dispute about this.
However, in the United States, the Anne Frank original text will be under copyright until 2042. This is the result of several factors coming together, and the English-language Wikipedia has actually covered this issue with a multi-part test on its non-US copyrights content guideline.
In short, there are three major laws that together make the diary still copyrighted:

  1. In general, the U.S. copyright for works published before 1978 is 95 years from date of publication. This came about because copyrights in the U.S. were originally for 28 years, with the ability to then extend that for a second 28 years (making a total of 56). Starting with the 1976 Copyright Act and extending to several more acts, the renewal became automatic and was extended. Today, the total term of works published before 1978 is 95 years from date of publication.
  2. Foreign works of countries that are treaty partners to the United States are covered as if they were US works.
  3. Even if a country was not a treaty partner under copyright law at the time of a publication, the 1994 Uruguay Round Agreements Act (URAA) restored copyright to works that:
    • had been published in a foreign country
    • were still under copyright in that country in 1996
    • and would have had U.S. copyright but for the fact they were published abroad.

Court challenges to the URAA have all failed, with the most notable (Golan v. Holder) resulting in a Supreme Court ruling that upheld the URAA.
What that means for Anne Frank’s diary is unfortunately simple: no matter how it wound up in the United States and regardless of what formal copyright notices they used, the US grants it copyright until the year 2042, or 95 years after its original publication in 1947.
Under current copyright law, this remains true regardless of its copyright status anywhere else in the world and regardless of whether it may have been in the public domain in the United States in the past.
Jacob Rogers, Legal Counsel*
Wikimedia Foundation

*Special thanks to Anisha Mangalick, Legal Fellow, for her assistance in this matter.

[1] The diary text was originally located at https://nl.wikisource.org/wiki/Het_Achterhuis_(Anne_Frank).

This article was edited to clarify that it is not just the location of the Wikimedia Foundation’s servers that determine whether we fall in US jurisdiction.

Archive notice: This is an archived post from blog.wikimedia.org, which operated under different editorial and content guidelines than Diff.

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would it be possible and useful for the European chapters (together with those in nations where copyright expires 70 years after the death of the author) to set up a server located in Europe for such works?

Copyright, as enacted by the First Congress, was for 14 years plus, maybe, another 14 years. Not 28+28. In 1831 this changed to 28+14. It was only in 1909 that it changed to 28+28. Just pointing that out. 🙂

it’s interesting that you should change your mind about URAA https://meta.wikimedia.org/wiki/Legal/URAA_Statement

http://wikilivres.ca/wiki/Het_Achterhuis_%28Anne_Frank%29
.mau., we already did when we were in the Wikimedia Italia board together in 2009, don’t you remember? 🙂

@puntomaupunto : it would be so easy with such a solution. We have the same problem here with the canadian law that is 50 years…

Hi Puntomaupunto and Ernest, we’ve modified the text after your comments—the location of our servers is one of only many factors that go into determining jurisdiction. Additionally, Jacob Rogers has told me that “The reason that WMF doesn’t put servers elsewhere is that we believe keeping servers in the United States is the best way to protect the projects from censorship and to protect user privacy. As we note in the URAA statement, putting servers elsewhere would create more problems than it solves, as other countries are often more strict than the United States in requiring content removal and do… Read more »

A rather unexpected removal, if I may say so. WMF US could at least have informed the uploader and given European chapters the opportunity to move the text. I also think that this blogpost is at least incomplete to not mention the Dutch court case of 23 Dec. 2015, in which the judges declared “Version C” of Anne Frank’s diaries (as published in “Het Achterhuis” in 1947 = the Wikisource text) to be public domain. (http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2015:9312 -2nd par. of 4.3.3., esp. Ingevolge de wetswijziging geldt echter dat de termijn is verlengd tot 70 jaar na het overlijden van Anne Frank.… Read more »

A rather unexpected removal, if I may say so. WMF US could at least have informed the uploader and given European chapters the opportunity to move the text. I also think that this blogpost is incomplete because it doesn’t mention the Dutch court case of 23 Dec. 2015, in which the judges declared “Version C” of Anne Frank’s diaries (as published in “Het Achterhuis” in 1947 = the Wikisource text) to be public domain. (http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBAMS:2015:9312 -2nd par. of 4.3.3., esp. Ingevolge de wetswijziging geldt echter dat de termijn is verlengd tot 70 jaar na het overlijden van Anne Frank. =… Read more »

Why don’t you go all the way, and ban everything supposed to be in the public domain until it reaches the life of the author plus 100 years? That way you’ll be absolutely sure that it will be legally shareable under all the jurisdictions of the planet.

It seems to me that the Foundation has taken an attitude of following every regulation, no matter how it may inhibit the exchange of knowledge, instead of pressing against the legal boundaries and using its size and reputation to help remove or lower those boundaries for everyone. I understand if the Foundation chooses to maintain servers in the US for technological reasons, since so much of the internet is in or passes through. But to remain legally incorporated here seems unwise. I would think one of the small tax havens (Liechtenstein, Monaco, etc.) would be a better location: 1. They… Read more »

These animals would try to claim copyrights on the Bible. Thats how low they have gone.

Warner Brothers claiming things they don’t own again?

Who owns that copyright at present?

There is a factual error in the above. The original term for copyright in the US was 14 years, renewable for another 14 years, for a total of 28 (Copyright Act of 1790). It was 28+28 prior to the 1976 Copyright Act because of intervening extensions of the original term, culminating in 28+28 as of the 1909 revision of the Act.

Wikimedia made exactly correct decision here. Even if you don’t like the current laws, they still need to be followed, if it is possible. Once they detect problems in their legality, actions should be taking to restore the situation to stable ground. I’m sure copyright owners are happy now that wikimedia has made the correct decision. We’ll just need to wait until 2040 before it can be properly published.

Has any work been done on ensuring the royalties paid to such an author actually reach said author? Or are the publishing companies pocketing said author’s royalties instead of remitting them to the authors? Also, since in the US Constitution’s take on copyright, the purpose of copyright is to encourage an author to produce more works, since their works and their consequent royalties are protected for a limited period of time, what new works has this copyright extension encouraged Anne Frank to produce?

The US Constitution specifies the purpose of intellectual property laws to be encouragement of productive output, generally. And one can certainly question whether seemingly-endless modern copyright terms actually promote such relative to shorter terms, or how retroactive extensions can possibly retroactively encourage anything. But it is not correct to suggest that the US Constitution, in any way, implies that obtaining copyright benefits on one work are to be tied to encouraging, or contingent upon, that specific author producing additional works.

this is all completely ridiculous

@josdamen: The diary is actually still under copyright in Europe according to the recent spat in the media, which is why this all came about. It has to do with when the book was published.

There are 3 published versions of the diaries of Anne Frank. Version A: the diary she wrote during war time; Version B: a rewritten and extended version of A, written by Anne Frank herself and Version C: a combination and slightly “censored version” of A & B, published in 1947 as “Het Achterhuis”. More information: see http://www.annefrank.org/en/Anne-Frank/The-diary-of-Anne-Frank/The-different-versions-of-Annes-diary/ There is a row between the Anne Frank Stichting (Amsterdam) and the Anne Frank Foundation (Basel), which -in short- comes down to this: Amsterdam want to study and subsequently publish Versions A and B open online; Basel states everything is under copyright till… Read more »

Though you have removed it because of copyright issue, still there are lots of resource available in internet about Anne Frank diary. I dont think it was logical to claim on this.

[…] Wikisource, a free library project that’s part of the Wikimedia Foundation, the same organization that operates Wikipedia, posted the book to their site. However, after learning that it was still copyrighted in the United States, the organization removed it. […]

[…] also led to a fascinating controversy over the Diary of Anne Frank. According to Dutch law her original diary enters the public domain […]

This is not acceptable. Anna frank is my favorite. They should resolve the copyright issue as soon as possible.