April 14, 2005

Hitler Copyright

Anders Andersson, one of my readers and frequent commenters, has written a web page on the question of copyright protection for Hitler's works (see also his comment on one of my earlier posts here).

Now the German Spiegel magazine is running an article on this. A small publisher in Poland has printed about 2000 copies of a Polish edition of "Mein Kampf". The German Federal State of Bavaria holds the copyright for that for Poland and many other countries.

And they use that to prevent publication whereever possible.

I have a few comments on the situation. However, current German law requires a short notice to readers: I am discussing copyright here. Nothing in my following views is to be understood as supporting Hitler or the Nazi regime.

Clearly the State of Bavaria is using copyright here to suppress the work in question. They don't seem to be interested in getting paid any royalties but want to use copyright to prevent publication in countries that don't have a prohibition against the publication as such (as Germany has in Article 86 of the Penal Code).

One might think this is an abuse of copyright. Copyright is supposed to give an incentive to the author by assuring a revenue stream, not to suppress the author's work because his heirs don't want it to spread.

Then again, as far as I see there is nothing in copyright law that restricts the rights of heirs to decide that they don't want to license the work. If the offspring of some author don't agree with the author's views and want to suppress the work, or if they want to publish something the author would rather have not published, they can decide freely about the issue.

Then there is the other question if a work that is declared illegal in the Penal Code should be protected by copyright in the first place. I have discussed this in the context of a "copyright for the Berlin Wall" before.

German law seems to recognize copyright even in illegal or immoral works. That is different with patents. You can't get a patent on a technology for cloning humans or for effectively robbing banks.

I don't see why that should be different with copyright. If some content is so harmful that it needs to be declared illegal under Penal law, there is definitely no need whatsoever to give the author any incentives to create it.

If so, copyright for Hitlers works should not be recognized in countries that have a Penal Code prohibition against their distribution, just as copyright protection for child porn or a terrorist manual explaining how to effectively distribute sarin in subways should not be recognized.

In contrast, if Polish law relevant in the case discussed in the Spiegel article has no prohibition against the publication of Hitlers book in the Penal Code, the above standard would recognize copyright. Copyright would work as a backup prohibition.

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Posted by Karl-Friedrich Lenz at April 14, 2005 11:50 PM