In an unfortunate example of the overreach of the United States’ current copyright law, the Wikimedia Foundation has 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.
We took this action to comply with the US 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, ch. 5, s. 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 WMF at legal[at]wikimedia.org, we determined that the Foundation had either “actual knowledge” (in the statute quoted below) or what is commonly called “red flag knowledge” (in the statute quoted below) that the Anne Frank text was hosted on Wikisource and is under copyright. In the statute, a service provider is protected by the DMCA only when it:
(i) has no actual knowledge that the material or an activity using the material on the system or network is infringing; or
(ii) in the absence of such actual knowledge, is unaware of facts or circumstances from which infringing activity is apparent.
Further conditions can apply when a proper DMCA takedown notice is served.
Of particular concern, the US 9th Circuit Court of Appeals stated in UMG Recordings, Inc. v. Shelter Capital Partners LLC that in circumstances where a hosting provider (such as the WMF) is informed by a third party (such as 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 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 US, the Anne Frank original text will be under copyright until 2042. This is the result of several factors coming together, and the English Wikipedia has actually covered this issue with a multi-part test on its non-US copyrights content guideline.
In short, three major laws together make the diary still copyrighted:
- In general, the US copyright for works published before 1978 is 95 years from date of publication. This came about because copyrights in the US 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.
- Foreign works of countries that are treaty partners to the US are covered as if they were US works.
- 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 US 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 regrettably simple: no matter how it wound up in the US 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 US.
- Jacob Rogers is a Legal Counsel at the Wikimedia Foundation; he thanks Anisha Mangalick, Legal Fellow, for her assistance in this matter.