In the follow-up to my post about Hitler's copyright, there was a discussion in comments about whether copyright for illegal works should be awarded or not.
There is no reason why copyright should ignore the question of whether the work is legal or not, while contract law or patent law or trademark law refuse to recognize illegal or immoral patents, trademarks or contracts.
In all cases, prohibiting something in penal law on one side and then recognizing a right on the same thing would seem to be a contradiction.
I also thought that this might have an influence on the debate of whether copyright can be used as a substitute censorship instrument in countries where the content in question is not illegal, as the State of Bavaria does in the case of Hitler's book.
However, I was wrong.
The reason for that is that it is up to each state to decide what is illegal and what not. The case of Salman Rushdie's work "The Satanic Verses" is even better suited to make this point clear than that of Hitler's book.
Assume for a moment that whoever is Rushdie's heir some time in the future and holds the copyright is hostile to the book and wants to use copyright as the State of Bavaria does in the case of Hitler's book. Or assume that the opponents of that work have succeeded in buying the translation rights for some country from a publisher who had received them from the author.
Then they would see a world where the book is illegal in the first place in some countries and there is no penal law prohibition in others. Germany and Japan would seem to fall in the second category. I might add that I have not read that particular book and therefore can offer no own opinion if it is in violation of Article 166 of the German Penal Code (Insulting of Faith), but know that it is published in German right now.
If so, any claim against the publication based on copyright in Germany could not be countered with the assertion that the book does not deserve copyright in the first place since its content is illegal. What content is illegal and what not would need to be decided by Germany's standards. If there is no prohibition in German penal law in the first place, there is nothing to exclude copyright enforcement.
If on the other hand in some Islamic country publishing is illegal in the first place, there is no need to fall back on copyright as a substitute censorship measure. While copyright might be not recognized in that case, it would be not necessary for the purpose.
The result is somewhat paradox. Recognizing copyright because a work is seen as neither illegal or immoral in some country actually helps censorship against that work. In contrast, denying copyright protection because the work is illegal or immoral takes one potential censorship instrument away. This is somewhat strange, but I don't see how to avoid this result right now.
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Posted by Karl-Friedrich Lenz at April 26, 2005 09:15 PM