Mein Kampf & Copyright
Last month I reported on how copyright is used to prevent the publication of Hitler's Mein Kampf. Now the German magazine Der Spiegel runs a story on the issue, and at his blog Karl Lenz gives some additional insights on the copyright on illegal works. He seems to think that from a legal perspective there is nothing wrong with the use of copyright to prevent publication. One might disagree, but as I pointed out the sheer availability of Mein Kampf on the internet makes this prevention hardly effective.
posted by Rik Lambers at 14.4.05
5 Comments:
Copyright is of course the worst form of censorship there is. Seen from that angle, declaring a work under copyright just to censor it seems a pragmatic approach, not to mention a drop in the ocean.
Interestingly, there is jurisprudence in the Netherlands that says that works may be published "on the basis of article 10 ECHR (freedom of speech)" (to quote you on the Spaink case). It would seem that if one work would be elligible for this treatment, it would be Mein Kampf. If it were censored in another way, this might not be possible. (IANAL)
One more thing. May 1 last year Poland joined the E.U. Presumably it must harmonize its copyright laws with the relevant E.U. copyright directives. One of those directives states that publishers who have been publishing a work before the directive came into force, may continue doing so after. I am not sure if this also goes for illegally published works, and whether the Polish publisher acted legally before Poland joined the E.U.
Branko,
The Scientology case and Mein Kampf copyright issues come together in this old article by prof. Dommering, you might be familiar with [in Dutch].
Actually, while the notion of freedom of speech trumping copyright in some rare case was a driving force in DWF Verkade's (advisory) opinion in the Spaink case, his core argument was based on copyright itself (prepublication by public authority of the documents in question Link)
The freedom of speech notion of the Spaink case may be projected on Mein Kampf, but I doubt its legal reasoning would be applicable.
Also note that art. 10 ECHR allows exceptions to freedom of speech for hate speech, such as Mein Kampf.
As to Poland, I'm not sure which provisions you refer to. Anyway, the enforcement of copyrights by the Bavarian state is not dependent on Poland joining the EU or adopting the EUCD. It could always seek this enforcement, since any publication/distribution of Mein Kampf would have been a violation of Bavaria's copyrights (and thus illegal). This does not mean that Bavaria's judical actions have always been recognized by foreign courts.
To clarify:
I think that under current law, there is no exception from copyright protection for illegal or immoral content (as opposed to patent protection).
However, as a matter of policy, I think that doesn't make sense.
If you have a prohibition in the Penal Code against some kind of content, there doesn't seem to be much need to give a copyright incentive for creating it.
(Karl-Friedrich Lenz)
As they say in the movies: good speech can take care of itself. It is bad speech that needs protection. This is the reason we have freedom of speech in the first place: because what's immoral or illegal in the eyes of the state may advance society (and overturn the state).
As for the EU provision: the introduction to the "COUNCIL DIRECTIVE 93/98/EEC of 29 October 1993" (which "harmonised" copyright terms) ends with: "(27) Whereas respect of acquired rights and legitimate expectations is part of the Community legal order; whereas Member States may provide in particular that in certain circumstances the copyright and related rights which are revived pursuant to this Directive may not give rise to payments by persons who undertook in good faith the exploitation of the works at the time when such works lay within the public domain,"
This doesn't seem to be part of the actual directive, but then again, what do I know, IANAL.
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