The District Court of Amsterdam recently ruled that the original text of Anne Frank’s diaries may be copied for scientific research. The case is yet another example of fundamental rights playing a role in intellectual property cases.
In short the case is about the complete version of the diaries of Anne Frank that was firstly published in 1978. The dispute is between the Anne Frank Fund (“Fund”), which owns the copyrights, and the Anne Frank Foundation (“Foundation”), which owns the physical works of Anne Frank. In 1998 they jointly decided to perform further scientific research on the diaries and for that purpose two facsimiles (exact replicas) were made of the diaries. After a few years the Foundation decided to make an XML-TEI file based on the scans that were made before to create the facsimiles. This XML-TEI file contains metadata on all characteristics of the original text, such as strike outs, comments and changes in handwriting.
In these proceedings the Fund has asked the court to ban the Foundation from copying and publishing the complete version of the diaries. The Foundation therefore invoked almost all exceptions in the Dutch Copyright Act (“DCA”) in order to overcome the ban. However, none of the exceptions laid down in the DCA cover scientific research. The Foundation also referred to the freedom of arts and sciences, laid down in the Charter of Fundamental Rights of the European Union.
While denying applicability of the exemptions in the DCA, the court found that the Fund had insufficiently contested that the scientific research would be done in the public interest. Furthermore, the Foundation undisputedly argued that the reproductions were made for research purposes only. Therefore, the court considered that it was up to the Fund to put forward arguments to substantiate why its copyrights should be of more importance than the freedom of science. However, the Fund had only mentioned that as a rights holder it did not need to tolerate everything. The Fund did not put forward such specific arguments.
The court concluded that in this case, scientific freedom is more important than protecting copyright. This is because the reproductions of the diaries would only be used by a limited number of researchers and the research would be of great historical and social importance.
By Wieke During