Pending Israel Copyright Amendment to Address Internet Piracy of Audio Visual Works

May 8, 2018

pirate bay

Oh, better far to live and die
Under the brave black flag I fly,
Than play a sanctimonious part,
With a pirate head and a pirate heart.
Away to the cheating world go you,
Where pirates all are well-to-do;
But I’ll be true to the song I sing,
And live and die a Pirate King.

Pirates of Penzance Gilbert & Sullivan

From 2006 to 2014, we have noted that Israel has been on the United States Special 301 priority watch list of countries having allegedly inadequate IP protection. The main criticism was the pharmaceutical extension regime in Israel which was believed to be too liberal to generic manufacturers. The amendment of the amendment was reamended and Israel’s status was upgraded.

A second criticism was that Israel’s copyright regime did not provide tools to hold Internet Service Providers (ISPs) responsible for preventing free access to copyright materials such as songs, movies and television series over the Internet. There are good arguments for and against making service providers responsible. They are not policemen and should not be. There is a perceived problem that without monetary compensation for their creative output, producers and artists will not create.

There is a new copyright bill pending legislation in Israel that addressed this issue, and a copy of which may be found here. The purpose of the bill is to try to reduce copyright piracy on the Internet, particularly of audio-visual works.

The following is an analysis of the proposed amendment. The bill contains four elements:

  1. An expansion of the concept of indirect infringement, to include websites that offer viewers access to unauthorized content such as movies and TV series. The indirect inclusion includes links to an offshore location in cases of actual or constructive knowledge of the act and intent to profit.
    This element will have utility to the extent that the Israeli courts can thereby obtain jurisdiction over the operators of the web site that aggregates the links. However, where this entity is not identified, then this part of the amendment won’t have much real world effect.
  2. Blocking Orders. While some courts have issued these in the past, other courts claim that without specific authorizing legislation they do not have authority to grant blocking orders. Hence the legislation.
    This element is likely to become the best tool for disrupting internet piracy. The proposal also clarifies that the cost of the blocking order will be borne by the applicant and not the Internet Service Provider (ISP). Apparently, there are actual costs in carrying out such blocking order.
  3. Discovery of the identities of up-loaders of infringing content.
  4. Enhanced criminal penalties.

The Tel Aviv Law School (Amnon Goldenberg Institute run by Professor Michael Birnhack) has published their comments on the bill, as have others, and it is scheduled to be debated by the Economics Committee of the Knesset on 21 May 2018.

ISP-1

The goal of the Ministry of Justice in formulating the bill was to find language that would be wide enough to catch pirates, but narrow enough to not cause any unwanted collateral damage. This goal was difficult to achieve in the proposed 48A.

Content developers and rights holders would prefer that the legislator err, if at all, on the side of over-protection, whereas the advocates of fair use and free speech prefer that the legislator err, if at all, on the side of under protection.

What is not included in the Bill, despite calls for such, is:

  • A codified “notice and takedown” type regime; and
  • WIPO style “technological protection measures” legislation.

The “notice and takedown” case-law seems to work, so why fix it? Although we have heard comments from legitimate web sites that a “safe harbour” might help them should 48A prove to broad in practice.

pirate dated

Currently, Israel does not have technical performance measures (TPM), something mandated by the 1996 WIPO treaties and intended for a different era, but which may have some unintended relevance in a world where content is no longer delivered on DVD, but rather through on-line subscription services. The Israel Justice Ministry does not have any a priori objection to either of these matters. However they are both incredibly complex to draft and if drafted improperly can have grave unintended consequences. For example, an overly broad TPM provision might have unintended consequences for tech companies and their developments.

The Justice Ministry considers that both of these issues are worthy of further study, but to move forward with them considers they should get the full legislative process by issuance of a proposal, requesting public comment, the drafting of a bill, and Knesset discussion, rather than a last-minute add-on to a pending bill.

The current bill is cautious and conservative, with the drafters having the perception that it is easier to add measures than to cope with overly broad powers and runaway judges.

 

Comment

The proposed legislation seems balanced and well-considered.

Certainly consumers of content should compensate the developers of the content for their efforts, and have little patience for those that download films and series, arguing that the developers don’t lose anything as they wouldn’t pay for it anyway. Traditionally, Jewish Law did not generally recognize non-tangible property rights, although entertainment, such as a dance, could have value and be used instead of a ring, for marriage purposes. The modern economy and civilization has moved on and IP rights are an essential development. Israel should be a light to the world in judicial matters. However, where there are widely accepted minimum standards of behaviour, it is important that Israeli legislation and private behaviour do not fall behind.  That said, I don’t think that there is any basis for assuming that people write songs or create films for revenue in 70 years’ time or for 50 years after death. The actuarial depreciation of such revenue streams to the time of writing results in such future profits as being negligible. I would prefer that:

  • laws on copyright infringement be coupled with the need to register copyright (as once required in the US, and required for trademarks, patents and designs
  • that the period of protection be significantly shortened to perhaps 10 or 15 years
  • that after initial launch in cinemas or as albums, movies and songs become available for reasonable cost over the Internet by legitimate streaming services, and that viewers can choose between premium advertisement-free access and sponsored access
  • there should be broad fair use exceptions
  • I am very put out that academic papers are developed by public universities and that access often requires payment. I want to see access for all with the universities sponsoring the publication rights, and more journals being exclusively on-line. Knowledge should be in the public domain, but authors should be recognized. There seems no place for commercial publishers of academic journals in the modern world.

A Balanced Temporary Injunction Against Rami Levy

April 19, 2018

This case concerns ‘minute steaks’ supplied by Rami Levy – a supermarket chain in own-brand packaging that has some similarity to that of Baladi, a brand that had introduced the product to the frozen meat freezers in Israel. Baladi sued Rami Levy for passing off, copyright infringement and unjust enrichment and tried to obtain a temporary injunction against Rami Levy at what is the start of the Israel barbecue season.

steaks

This case concerns ‘minute steaks’ supplied by Rami Levy – a supermarket chain in own-brand packaging that has some similarity to that of Baladi, a brand that had introduced the product to the frozen meat freezers in Israel. Baladi sued Rami Levy for passing off, copyright infringement and unjust enrichment and tried to obtain a temporary injunction against Rami Levy at what is the start of the Israel barbecue season.

baladi minute steak

The claims of passing off and copyright infringement were considered unlikely to prevail and thus not grounds for a temporary injunction. However, Judge Avrahami saw fit to grant a temporary injunction on the grounds of unjust enrichment. Rather than have Rami Levy’s product removed from the shelves and repackaged which could result in the meat being lost, she ruled that a sticker in a contrasting colour should be attached to the packages indicating that Maadaniya was Rami Levy’s own brand. Rami Levy was also advised to work towards introducing a more different package. The parties were invited to try to settle their differences without the court having to hear the case in its

Baladi makes meat products including minute steak which are thinly sliced steak that can be roasted in a frying pan in one minute. Baladi claims to have designed the packaging that they use for minute steaks.

Rami Levi is a public company that runs supermarkets across Israel. The company stocks known brands and also sells popular products packaged for them under their own label.

Rami Levi sells Baladi products. It also sells minute steaks under their only  own label “Rami Levi’s Sycamore Marketing Delicatessen”. Rami Levi’s own label minute steaks are packaged by TBone Veal.

In a preliminary ruling, Baladi claimed that minute steaks were not sold in supermarkets until they launched this product in November 2017 with a massive and expensive sales campaign. From the launch until 19 March 2018, the product sold well due to the marketing campaign. On 19 March 2018, suddenly, without notice, Rami Levi forbade Baladi to replenish supplies and blocked the product, and instead supplied minute steaks under their own label.

baladi logo

Baladi claims that the own-label brand is packaged in a copycat package of that of their product, and that this was a calculated, organized action of Rami Levi in bad faith, to ride on Baladi’s advertising campaign and product launch, benefiting from their investment. Baladi’s campaign has drawn customers to want to purchase their product. The customers go to the meat refrigerators and find the infringing product that is a copy of their package and are misled into believing that they are purchasing Baladi’s product.

Baladi considers that the case is particularly serious since Rami Levi is a retailer that can block their product whilst offering the competing own-label product. This is particularly problematic since Rami Levi’s product launch was just before Pesach and close to Independence Day which is the start of the Israel barbecue season when sales go up significantly.

In light of the above, on 22 March 2018, Baladi sued for passing off, unfair trade practices, copyright infringement in the product package and unjust enrichment. They filed their case in the Tel Aviv and Jaffa District Court. Baladi requested a permanent injunction, compensation and production of sales data. For the purpose of assessing the court fees, Baladi assess the damages at 2,750,000 Shekels.

Baladi also requested a temporary injunction on Rami Levi to prevent them using the product sold under their private label or at least to prevent them selling the product in the packaging used at the time of filing, and to cease from blocking Baladi’s products, and to enable their products to be sold on an equal basis with other frozen meat products. The Request was supported by an affidavit from Ms Irene Feldman, the VCFO of Baladi, and was filed as an ex-partes action for immediate attention since any delay will cause irreparable damage.

El gaucho minute steak

In response, Yossi Sabato, the VCEO of Rami Levy submitted an Affidavit claiming that Baladi was acting in extreme bad faith by not telling the court that they were conducting a parallel action against El Gaucho which is a label of TBone Veal in the Central District Court as 4347-01-18. In that instance, they made similar accusations which were rejected. This action, in a different court, against a different label, was a type of forum shopping that was indicative of bad faith and should be sufficient for the case to be thrown out. This was simply an attempt to corner the market and to prevent competition. The Ex-partes actions in both the El Gaucho case and in the present instance are cynical exploitations of the legal system designed to get free publicity, and the plaintiff was suing for extreme damages without having first contacted the supermarket chain, which is itself inequitable behavior for which the case should be thrown out.

monopoly

With regards to the complaint itself, Rami Levy claims that Baladi is trying to obtain a monopoly on minute steaks, which is a term known in Israel and abroad and which they did not coin. Baladi also tried to obtain a trademark for this generic term. Minute steaks have been advertised in Israel in the past and are available in restaurants and from butchers, and even from supermarkets. Baladi has not been in the market long enough for minute steaks to be identified with them to the extent that they deserve a monopoly on the term (acquired distinctiveness), and a reputation that is protectable, and even Baladi does not claim to have rights to minute steaks but only to the sound of the name.

Rami Levy

Rami Levy claims that their product package is completely different from Baladi’s, including writing and visual elements, and there is no likelihood of confusion. Baladi advertises their product with their trade-name Baladi clearly written thereon and, in the absence of this term, there is no likelihood of confusion. Rami Levy’s private label HaMaadaniya (literally the delicatessen) is well-known to Rami Levy’s customers as a low price brand, and there is no likelihood of confusion.

“Rami Levy” is written clearly on the front and back of the packaging, and is a super brand that does not need to ride on the reputation of Baladi or anyone else. The difference in price also prevents confusion, and all Rami Levy’s own branded products are clearly sold as such in their stores, and there are loads of examples of private labels being sold alongside branded goods and the public are not misled in any way that they are purchasing something other than the own label.

boycott

As to the issue of marketing Baladi’s products in Rami Levy’s stores, Rami Levy contends that they are under no obligation by general law (in rem) or by contract (in personam) with Baladi, to purchase any of Baladi’s products, including their meat products. Baladi’s goods are available in other chains. At present, Rami Levy stores DO stock Baladi’s minute steaks but, in view of the high price that Baladi dictates for their product, Rami Levy is under no obligation to replenish stocks of something much more

In answer to Rami Levy’s response, Baladi reiterated that their issue is NOT the name ‘minute steak’, but the packaging and the product blocking. On 26 March 2018. a long hearing was held. There were many attempts to bring the parties into an understanding, and the affidavits were reviewed and the parties summarized their arguments. After the hearing the parties still refused to come to an understanding, and so there is no alternative but to reach a verdict in this instance.

Relevant Considerations Regarding Temporary Injunctions

Principles-Governing-Issuance-of-Temporary-Injunction

It is known that the party requesting a temporary injunction has to convince the Court, on the basis of apparently convincing evidence, that there is grounds for the complaint and the Court then has to balance the ease of implementing the different actions, i.e. the damage to the complainant if a temporary restriction order is not issued, vs. the damage to defendant if a temporary restriction order is issued but if it later transpires should not have been. The Court has to ascertain whether the temporary injunction was requested in good faith, and if the injunction is just and fitting in the circumstances and does not unduly damage the defendant – See Regulation 363 of the Civil Procedures Regulation 1984.

interests

The main considerations for requesting a temporary injunction are the likelihood of prevailing and the balance of interests of the two parties, but where the Court considers that the likelihood of prevailing is greater, they will be less concerned about the balance of interests, and the opposite is also true.

When deciding on a temporary injunction, the court also has Read the rest of this entry »


A Storm in a Coffee Cup

March 20, 2017

This ruling relates to competing rights of different relatives to register and use trademarks for a family business that eventually split up. The marks were registered by a cousin living in Ramallah, and cousins living in East Jerusalem applied to have the marks cancelled on various grounds including passing off, misleading marks, inequitable behavior and lack of use.

234876 LOGOChain Stores of Izhiman Coffee Company own two trademarks: Israel Trademark No. 234876 for the logo shown alongside, and 234877 for the Arabic and English word mark
بن ازحيمان IZHIMAN’S COFFEE.

Maazen and Shapik Izhimian applied to have the marks canceled under Section 39 of the Trademark Ordinance 1972, and further under Section 41 for lack of use.

The marks were first applied for by Muhammad Musa H’alad Izhiman in January 2011, and after examination, were registered on 2 May 2012 for “coffee and coffee spices in class 30.” On 27 February 2014, the marks was assigned to Chain Stores of Izhiman Coffee Company, a Palestinian Company based in Ramallah that was owned by Muhammad Musa H’alad Izhiman and his two sons Kassam and Nasser.

On 5 March 2014, the brothers Maazen and Shapik Izhimian who own a Jerusalem based business in Bet HaBad Street, for marketing and trading in coffee and spices under the name “Izhiman’s Coffee” and who are cousins of Muhammad, submitted a cancellation request. In July 2014, the owners Chain Stores of Izhiman Coffee Company submitted their response.

The Background

EnjoyMuhammad, his three brothers and the Applicants for cancellation are all members of the same clan, that were involved in the family business established by Musa, Muhammad’s father, together with Mahmud, the father of Maazen and Shapik in the 1980s. The company had three addresses, the Ramallah address, the Jerusalem address now run by Maazen and Shapik, and a third branch in Abu Dis.

In 1994, Muhammad fell out with his brothers and nephews and received sole ownership of the Ramallah store. His three brothers and the nephews shared the Abu Dis and the Bet HaBad Jerusalem shops and opened a further outlet themselves in Ramallah. In 2000 the applicants for cancellation and Muhammad’s three brothers opened a fourth branch in Salah Shabati Salahadin Street in East Jerusalem. In 2008, these partners ceased to cooperate, and Maazen and Shapik were left with the Jerusalem Store in Bet HaBad Street.

love.jpgMaazen and Shapik submitted an affidavit written by Maazen and a second one from Riyadh Ghazi Halaq, the owner of a coffee shop near the Bet HaBad address that buys his raw coffee from them. The mark owners responded with an Affidavit by Nasser Muhammad Musa Izhiman, Partner and authorized signatory. At the end of September 2016, the Adjudicator of IP, Ms Yaara Shoshani Caspi held a hearing and the witnesses were cross-examined.
Read the rest of this entry »


There would be one long staircase just going up…

June 25, 2016

stairway to heaven

I think Stairway to Heaven is far to long a song, and consider it over-rated. It lasts for over ten minutes, and Bohemian Rhapsody is only six minutes, and has rather more going for it. Besides, being ex-Imperial and having a PhD in physics, I feel a certain kinship with lead guitarist Dr Brian May, however I am not sure it is reciprocated.

That as may be, after an eight-day jury trial, it was ruled that the guitar riff did not infringe copyright of Spirit’s song Taurus.

I think that the media should differentiate more carefully between copyright infringement which is a crime, and plagiarism which is not.

Men at Work’s Greg Ham were accused of plagiarizing Kookaburra Sits In The Old Gum Tree in  Down Under. He committed suicide, leaving a note that said “I’m terribly disappointed that that’s the way I’m going to be remembered – for copying something…”. This was a tragedy.

Now it can happen that a song is based, possibly unintentionally on the work of another. George Harrison’s My Sweet Lord was found to have the same melody as Ronnie Mack’s He’s So Fine. The melody of Naomi Shemer’s Lu Hehi (literally let it be), bears more than a casual similarity to Paul McCartney’s Let it Be.

Of course, sometimes an unmistakable similarity does not imply that one piece is a copy of the other. A good example of this is HaTikveh (The Hope) – Israel’s national Anthem, the melody of which may be found here. there is a clear similarity to the melody of  Vltava by the Czech composer Bedřich Smetana. However, although Samuel Cohen, the composer, admitted that he was influended by a Moldovian song, it is far from clear where the melody originated and it may well have Jewish origins. That as may be, sometimes a composer will reference a line from the work of another, and this should be considered fair use. A good of example of this is the Swan-song from Tchaikovsky’s Swan Lake which has a four-stroke drum beat that echos Beethoven’s fifth symphonyfifth symphonyfifth symphony (Death at the Door).  I don’t see this as copyright infringement, but rather as a cultural reference. Copyright now lasts a ridiculously long 70 or 95 years. Do we really want to prevent any discernible similarities to the work of anyone in living memory in new works? The jury got it right, even if it took them over a week.

POST SCRIPT I showed this article to a client who is part of the Israeli music world. The Client studied at Netiv Meir and is not now Hallachically Observant. He told me that in the Nineties a noise-rock outfit called Plastic Venus played at the club where he worked. After the show, he asked the lead singer, Ronit Bergman, who wrote the music, and she pointed to the drummer Ilan Diamond. He went over to him and asked if he could ask him a personal question, and when Diamond agreed, asked him what Hassidic Court he grew up in. The answer was Vishnitz. If one listens to Plastic Venus’s music under the psychedelic overtones and all the distortion, one can discern Hassidic melodies. People listen to, absorb and rework the melodies of their childhood and other music they once heard. There are interesting historical reasons why Chabad Hassidim sing Napoleon’s March to this day. The reasons are linked to why the early Rebbes were incarcerated by the Tzar.

 


And the Oscar goes to Israel Ministry of Tourism

February 19, 2016

Oscar

Distinctive Assets has put together a goody bag to give out at the Academy of Motion Picture Arts and Sciences (AMPAS)’ award cermony known as the Oscars. The bag, worth an alleged $200,000 includes a VIP trip to Israel that is partly sponsored by the Israel Ministry of Tourism, amongst other expensive gifts including personal intimate massage devices, a vaporiser for a medical drug that is otherwise generally illegal and a device called a “vampire breast lift” whose usage esapes me.

However the Academy of Motion Picture Arts and Sciences (AMPAS), which manages the Oscar movie awards ceremony said it does not give out gift bags and AMPAS filed a lawsuit at the US District Court for the Central District of California on Tuesday, February 16 complaining that the marketing company’s actions have caused confusion and may lead people to assume that it is connected with the bags.

According to the complaint, the marketing company has used social media to promote the bag, including using the hashtag #OscarsSwagBag.

AMPAS also complained that Distinctive Assets sent press releases to news outlets and has misused its trademarks in the promotional material.


PETA

February 14, 2016

249607

On 4 Speptember 2012 Anna Lotan LTD filed Israel Trademark Application No. 249607 for PETA as shown above. The mark covers cosmetics- face and body creams, lotions, face and body cleaning preparations, soaps, gels, masks – all included in class 3.

The application was allowed and published for opposition purposes on 31 December 2013. On 30 March 2014, a Opposition proceedings was initiated by People for the Ethical Treatment of Animals, Inc. “PETA”.

The parties submitted their statements and evidence, forgo a hearing and croess-examination and submitted written summaries.

PETA is a non-profit organization founded in the United States that protects animal rights. PETA educates about lifestyles that do not take advantage of animals and monitor experiments on Animals. The Foundation to Support Animal Protection “FSAP” is a US Company that provides services to PETA and files PETA’s trademarks around the world, one of which is very similar to the Application in question, but PETA’s mark also includes the full name of PETA. This mark is shown below:

PETA trademark

PETA has had a tremendous amount of press coverage worldwide including a certain amount of press coverage in Israel [mostly due to the provocative use of naked women – MF]. Their marks are well known in the United States.

The Applicant, Anne Lotan, m nufactures and sells cosmetics. Apart from submitting some packaging showing the applied for mark, Anne Lotan did not supply details of their business.

PETA allows commercial companies to use its marks on products that are not tested on animals. Both sides concur that prior to filing their own application, Anne Lotan tried to obtain a license to use PETA’s marks and both sides concur that at the time of filing Anne Lotan did not have a license.

PETA claims that the mark is theirs and that Anne Lotan filed in bad faith to register a license that she was not authorized to use.

Anne Lotan claimed that they attempted to register the marks on failing to obtain authorization from PETA to use them, and after some of their products were inadvertently marked with the applied for logo.

The parties addressed the issue of registerability of the mark under Section 11(f) of the Trademark Ordinance 1972.  The Applicant does not deny that PETA have rights to the mark, but claim that their usage thereof was unintentional and not indicative of lack of faith on their part.

In the circumstances, the Deputy Commissioner considers that this Opposition can be dealt with briefly.

Section 17(a) of the Regulation states that an Application may be filed by an entity claiming ownership of the mark. In this instance, the Applicant does not claim rights to the mark and  does not have rights. The purpose of their attempted registration is to prevent the legitimate rights owner from registering the trademark and preventing Applicant’s usage thereof by selling packages with the mark thereon.

The Applicant filed the application after the Opposer requested that they stop selling such packages and after the Applicant agreed to take down the mark from their website. The Applicant claims that their attempted registration was legitimate in light of Section 7 which instructs that someone desiring sole rights to mark may file a trademark application for it.

The Deputy Commissioner failed to full follow the Applicant’s arguments but notes that the Applicant wasn’t even claiming sole rights. Anne Lotan is not the owner of the mark and cannot be registered as such in the Register. The exact relationship between PETA and  FSAP is not clear. However, as Anne Lotan does not challenge PETA’s rights to the mark, this relationship is not essential as far as this ruling is concerned.

The mark cannot be registered by Anne Lotan under Section 11(e) or 11(f), despite Opposer not specifically addressing this issue, since both parties agree that Anne Lotan does not have any rights in this. The logo is not theirs. One cannot register someone elses copyright protected artwork as a trademark without authority to do so.  In this instance, the stylized rabbit and the font are copyright protected property of PETA and thus cannot be registered under Section 11(e).

Section 11(f) prevents registration of a mark that could confuse the public and create unfair competition. Anne Lotan claims that there is no inequitable behaviour in that they do not compete with PETA and thus registration of the mark does not contravene Section 11(f).

The Deputy Commissioner does not consider that the two entities are competitors but rather that by Anne Lotan’s using the mark, the public would be mislead into wrongfully thinking that Anne Lotan’s goods had been inspected and approved by PETA as not having been tested on animals.

Allowing registration of the mark by Anne Lotan would create the false impression the PETA had authorized that the products were not tested on animals. There is also dilution in this instance.

PETA trades in the mark by allowing its usage on products authorized by PETA as not having been tested on animals. Anne Lotan does not deny this. Allowing Anne Lotan to register the  mark would dilute PETA’s mark. Regardless of how Anne Lotan sees their behaviour, objectively their behaviour is one of bad faith.

The mark may not be registered by Anne Lotan who must pay 5000 Shekels expenses and 30,000 Shekels + VAT legal costs to PETA, the costs being determined by the amount of evidence submitted.


The Diary of Anne Frank ®   – Trademark abuse

January 10, 2016

trademark abuse

In addition to adding Otto Frank as an author of Anne Frank’s diary in an attempt to keep the work out of the public domain, some bright lawyer working for the Foundation has successfully filed the book title as a trademark.

The purpose of this is the same. It is to prevent the book from entering the public domain. Trademarks may be renewed for ever. The ramification of this trademark registration is that only books originated or licenses by the Anne Frank Foundation can be titled The Diary of Anne Frank or anything confusingly similar.

No doubt the foundation would argue that this is to protect her integrity as an author and to prevent others from hacking about with the content. This is surprising as apparently they now believe that her father her father Otto did sufficient reworking to be considered as a co-author.

I accept that the title of a book can be an indication of origin and is inherently distinctive. The problem I have is that this development effectively makes copyright unlimited and prevents anyone else from publishing the book unless they give it a totally different name such as the Secret Diary of Adrian Mole aged 13 3/4, Anne of Green Gables, Frankenstein or something sufficiently different from the Diary of Anne Frank®, that no one could possibly be confused.

Since this is flagrant trademark abuse, it should be banned on policy grounds. There are different ways for doing this. I think that the trademark could have been considered as generic for books having the content of the diary since the diary is in the public domain, or it could have simply been refused on the grounds of ‘ordre public’ since public policy is for books to eventually enter the public domain a set period of time from the author’s death.

It would be churlish to point out that using actuarial tools to calculate the real time worth of possible sales in 70 years after’s one death is not actually an inventive for anyone to write anything. It would be insensitive to point out that regardless of Otto’s reasons for whatever authorship contribution he actually had, Anne Frank was not writing to publish at all.

For more on the difference between names and contents, what names are called and what works of literature may be called, it is worth considering that the white knight in Lewis Carroll’s chess novel Through the Looking Glass parodies a poem by Wordsworth and anticipates Wittgenstein in a song whose name is called Haddocks’ Eyes, but whose name is The Aged Aged Man. The song itself is called Ways and Means and is A-sitting on a Gate.