[:fr]Published in La Gazette du Palais December 11, 2009
article gazette du palais Dec. 2009
By Philippe Coen [1]
Head of the Intellectual Property Commission and Vice-President
of the French Corporate Counsel Association (AFJE)
“I will give them an everlasting name”, Isaiah, 56:5.
When an author is a criminal leader of unsurpassable influence, the countdown of copyright protection, in the present case seventy years from the death of the author, may have a particularly important meaning. In relation to “Mein Kampf” (My Struggle), the countdown of copyright protection ends in 2016. Few books are as well-known worldwide as “Mein Kampf”, whose title does not originate from the presumed author of the book but rather by its publisher. Mein Kampfwas written by Adolf Hitler in which he describes his National-Socialist vision. Compared with other books, it is atypical given its context, contents, and consequences.
The incitement to hatred, underlying the whole book and the political plan on which it is based, widely contributed to drastically changing the course of History. The book foreshadows all of the major plans of invasion – Anschluss, antiparliamentarianism, superiority of race, etc. With the benefit of hindsight, this harvest of hate[2] contains a virtually complete pre-admission of the Führer-to-be’s behaviour, decisions and crimes. At a time when the book is about to become part of the public domain, the copyright rules raise substantial issues, specifically for legal practitioners and historians, as the ‘standard’ copyright would be unsuitable for this still vivid type of tool of racial and political hatred.
– 1. A book that changed the face of the world
The book is about 700 pages long[3]. For legal as well as historical reasons, re-editions of Adolf Hitler’s book are scarce. “Mein Kampf” is a book drafted by Hitler, in which he lays the foundations of Nazi ideology. The book was drafted between 1923 and 1924 when, on 11th November 1923, Hitler was sentenced to five[4] years’ imprisonment at the old remand centre in Landsberg-am-Lech, in Bavaria, following the failed attempted “Beer Hall” putsch in Munich on November 8th and 9th, 1923. The book was dictated to Rudolf Hess[5], Hitler’s loyal secretary, and drafted in the company of Emil Maurice, his adviser. It details Hitler’s theories on racial purity, his hatred of communism and socialism, as well as his obsession with the malfeasances of Jews. Given the assistance he received in drafting the book while he was in prison, one may wonder if the book in question should not constitute a collective work.
The book was a success when it was released with 290,000 copies. It was then progressively distributed so as to reach millions of copies in Germany.
It was only when Chancellor Hitler came to power that the book was widely distributed in Germany. Twelve million copies, not including translations, were distributed at that time. Hitler had no political influence when the book was drafted. The book is an ideological manifesto of the Nazi movement, peppered with historical details on the creation of the German National Socialist Workers’ Party (NSDAP) and biographical details about the author.
The peculiar, and historically recognised, harmfulness of the book lies in its incantatory structure, notably against Jews and ‘inferior people’. The resulting distribution of millions of copies of the book, is the basis for the verbal dissemination of the propaganda of Mein Kampf, and was part of an organised plan aimed at motivating people to adhere to the ideas contained in the book and put them into action[6]. This plan, among its key achievements, eventually led to the Wannsee Conference about twenty years later, on January 20th, 1942, executing the “Final solution”. S.S. General Von Dem Bach Zelewsky, at the Nuremberg trial, pointed his finger at the propagandist mechanism and its efficiency:
“…when, for years, for decades, the doctrine is preached that the Slav is a member of an inferior race and that the Jew is not even human, then such an explosion is inevitable. The way from “Mein Kampf” leads directly to the Auschwitz furnaces and to the gas chambers in Maï Danek”[7].
– 2. The copyright holders
A copyright includes all of the exclusive prerogatives an author has on his original intellectual work. A copyright includes a moral right as well as economic rights. The moral right is an enduring right that gives the assigns of the holder of that right a possibility to act even after the expiration of the period of seventy years from the death of the author, which is generally regarded as the reference period of time.
At the end of the war, and more precisely in 1946, the Allies, speaking through the Americans, entrusted Hitler’s personal property, including the copyright on the book, to the State of Bavaria, where the book was conceived, and the Bavarian city of Munich also being the author’s last official address.
The copyright and the right of exploitation are currently held by the German Land (State) of Bavaria, which inherited the whole of Hitler’s belongings. They have been held by Bavaria since the Allies entrusted it with such property as part of the denazification process.
The law provides that a copyright is protected for seventy years from the death of the author, who in this case died in 1945. This means that the copyright of “Mein Kampf” will be part of the public domain from the 31st of December 2015 onwards.
A controversy with considerable financial consequences arose in 2004 as to who was the holder of the copyright on Hitler’s book. Peter Raubal, the son of Leo Raubal, a grand-nephew of Hitler, was identified in the press as being likely to claim the inheritance. Leo Raubal was the son of Angela Raubal, Hitler’s half-sister[8], and, as such, he could have claimed the inheritance as per German copyright law. However, shortly after the controversy, which was stirred up in the press at the time, Adolf Hitler’s grand-nephew, preferring ‘tranquillity’, renounced taking legal action against the Landof Bavaria.
The Land of Bavaria, represented by the Ministry of Finance, has been actively exercising its copyright, and may either grant with conditions (partial publication, addition of critical remarks, etc) or refuse the right to re-publish Mein Kampf, to publishers.
The notion of copyright was acute for Adolf Hitler, who in 1942, declared the following:
“ »If somebody else had one day been found to accomplish the work to which I’ve devoted myself, I would never have entered on the path of politics. I’d have chosen the arts or philosophy”[9].
Adolf Hitler, who was twice denied admission to the Fine Arts Academy, adds the following to corroborate his complicated relation with arts:
“Everything that a man consumes, as resources, to cover his vital material needs, is doomed to oblivion, and only that which he built, and he leaves as lasting, will testify to his stay on this earth. The manuscript of a starving philosopher will live forever in the history of mankind, far more than any profit-making activities of the most conceited capitalist (…). Art is the only achievement from work, from human energy, that is imperishable!”[10].
– 3. Selected examples of the book’s distribution, according to country:
Germany
Mein Kampf was massively distributed in Germany in the 30s: it was published in Braille; it was also distributed most notably by the management of the Krupp factories, who bought copies of the book for worthy employees; mayors offered a copy of the book to every couple they married[11]; civil servants and town halls were required to buy it; … Twelve million copies had been distributed at the end of the Third Reich, making one copy in every other home, compared to four million copies distributed at the eve of World War II. The purpose of this operation was propaganda, not forgetting the financial aspects of the operation for the author of the book.
The book had an unprecedented influence on people’s minds in Germany as several million copies were distributed at the time. Upon the advent of Nazism, the book was recommended to all of the population, particularly to civil servants and soldiers. Republishing the book is currently prohibited in Germany[12], Austria and the Netherlands, for reasons not relating to intellectual property law. However, a 1979 judgment by the German Federal Court of Justice defined the legal framework applicable to the possession and publishing of this book. Possession of the ancient books only, those published prior to 1945, is authorised, as well as the publication of long excerpts in historical books for scientific purposes. However, possessing a copy of the book is not a statutory offence.
The risks of the resurgence of neo-Nazi groups have certainly been strong enough to lead to such preventive measures, which also apply to any Nazism figurative symbols (swastikas, SS bolts and other characteristic insignia).
In 1999, the English version of the book was the third best-selling book on Amazon. Deliveries to mailing addresses in Germany were forbidden.
In 2006, Mr. Olaf Simons, a university lecturer, was threatened with legal action if he continued to distribute photocopies of the book. He had distributed these photocopies to facilitate the work of his students.
From 2016 onwards, German intellectual property law shall no longer make it possible for the Landof Bavaria to monitor the publication of the book from a copyright standpoint. The rules in Germany which prevent the marketing of Mein Kampf shall remain in place, and they will allow German prosecutors to continue preventing the circulation of the book in all instances.
United States
In the United States, where total freedom of the press is protected by the First Amendment to the United States Constitution, the publication of the book is not a statutory offence. The rights were sold to Houghton-Miffin before the war, who still publishes the book. In 1946, the U.S. Government requested that the profits be paid to a fund for Jewish refugees. A scandal broke out in 2000 as the publisher had obtained, in 1979, the right to keep such profits. The profits are presently paid to organisations perpetuating the memory of the Shoah.
France
In 1934, one year after Hitler’s accession to power in Germany, Nouvelles Editions Latines decided to translate the book by Adolf Hitler into French, despite the author’s refusal. Hitler lodged a complaint against the publisher and won – the publication was forbidden. In 1938, Fayard was authorised to translate the book, but the version of the text was censored so as to remove any elements that could be problematic for the image of Nazi Germany, going as far as giving a falsified version of the text.
Before 1945, German officers outside of Germany encouraged numerous translations of the book, which were cautious and censored to remove the more threatening passages of the book. France, a country that was well known to Hitler as he took part in the Somme battles in 1914, was at the centre of the target of the aggression project. In Paris, Fernand Sorlot[13], a Maurrassian publisher, who was even more anti-German than Maurras, disregarded the author’s will that the book not be published in France, and published an unabridged version of the book with Nouvelles Editions Latines in 1934. He used the following instruction by French Marshal Lyautey as an epigraph: “Every French person must read this book” (“Tout Français doit lire ce livre”). Hitler, as would any other writer, took legal action in France on the grounds of copyright infringement[14], and obtained a ruling that the book be removed from shelves and any books in stock be seized. Soon after the Munich Agreement, and probably at the instigation of Nazi networks in France, Fayard published a censored version called Ma Doctrine, from which any passages exuding hatred against French people had been removed. At the same time, 5,000 surviving copies of the unauthorized book Mon Combat were sent by LICA[15] to opinion leaders, LICA having salvaged the books at the last minute before they were pulped. The book was one of the very first books that the German occupation, settling in Paris, mentioned on the Otto list in the Summer of 1940 imposing a ban on the sale of the book. Soon after the war, Germans either destroyed or burned a number of the twelve million copies of the then cursed book, and libraries put the book under lock and key in their “poisons room”. The distribution of the book is still forbidden today by the Ministry of Finance of the Land of Bavaria.
Officially, this prohibition is out of respect for the memory of the victims. Unofficially, it is because Germany is the only country where the publication of the book will necessarily be seen by public opinion as a sign of Nazism resurgence. In France, historians estimate that the number of readers of the book in France after the war would have been equivalent to 20,000 copies.
France has been guaranteeing the free expression of ideas since the 1789 Declaration of the Rights of Man and Citizen and the 1881 Acts. Freedom of speech is restricted when it involves offences or infringement of the law relating to libel, slander, abuse, or the incitement to or defence of racial hatred. Selling, distributing or reproducing foreign publications that are banned in France may also result in penalties not exceeding one year imprisonment and a 4,500 Euro fine. In particular, various mail-order selling sites comply with this ban and have removed several books, which are banned on French territory, from their catalogues. Also, U.S. e-sellers are refusing to sell some books, which are banned from French territory, when the purchaser gives a delivery address in France.
The selling of the French translation of the book has been authorised in France since 1978, provided that the translation is preceded by a reminder of Nazi crimes as well as the offence of the incitement to racial hatred. The Nouvelles Editions Latines has been publishing a translation dating back to 1934, for which they have had no royalties to pay.
The Netherlands
The selling of the book has been prohibited in The Netherlands since the end of the war and has been a criminal offence since 1987. The application of this text does not seem to be concrete.
Israel
The book has been available and translated into Hebrew since 1995[16].
Iran, Turkey, India, Indonesia, Russia
Mein Kampf has not been banned in Iran, India, Indonesia, or Turkey, to name just a few. Similarly, in the Arab world, Iran and Russia, the Protocols of the Elders of Zion[17] and Mein Kampf are well established, prosperous and highly respected, and have even become fashionable post-9/11/2001, with the influence of the Zionist conspiracy theory as an explanation for all misfortunes in the world including the September 11 attacks….In Turkey, and according to Emre, the publisher, 80,000 copies of the book were sold to young readers at the time of its publication. A very high increase in sales for this book after the second intifada was noted in Israel, Lebanon, the Palestinian territories, India, and Indonesia, to name just a few.
The beast is far from having breathed its last breath, and this raises real issues as to the legal status of any new publications of the book.
Japan
The success of the manga version of Mein Kampf in Japan re-launched the debate on copyright in Europe.
The current success of the manga version (Waga Toso, published by East Press) with teenagers and young male adults in Japan is worrisome. More than 45,000 copies have already been sold. The current success of the manga version is all the more intriguing as the 1924 book itself contained rallying signs with Japan – a subsection of book mentions the theory according to which Japan would be threatened by the English Jews. The contemporaneous resurgence of a fad for this book in Japan is therefore all the more disturbing[18]. By way of comparison, the sales of the manga version of Mein Kampf exceeded the sales of the manga version of the Capital by Karl Marx. The aforesaid Japanese publication of Mein Kampf has had no regard at all for the legal situation of the book and the position officially expressed by the Land of Bavaria, the holder of the copyright of the book[19].
What should we think about the argument according to which publishing the book in a manga version would be part of an educative mission[20]? An unconditional prohibition resulting from the enforcement of the exclusive rights held by the author’s assigns would raise the issue of the appropriateness to access a document having an obvious founding historical interest. The risk in refusing the publication of the document would automatically go along with a risk that the censored document be regarded as sacred and become even more attractive, precisely because it has been banned. However, for this kind of publication to play an academic role, a scholarly work must be initiated. This has not been the case with the Japanese manga, which simply illustrates the book without putting it in context, and without shedding light on the ignominious nature of Hitler’s project or on its tragic enforcement method. In fact, the Japanese manga version is not part of any academic mission, but rather part of a tangible “Nazi-mania” that is settling in Japan. The Japanese cartoons favouring aestheticism and glorifying Hitler and the military adventures of the Third Reich are flourishing on the market, in a country where the accepted nostalgia for Hitler is hardly controversial. The success of the manga in this former member of the Axis Powers[21] is not completely surprising in a country where neo-Nazi publications are very popular. Going beyond the success of the cartoon, the Japanese publication raises the issue of the limits of the application of worldwide copyright protection when it comes to controversial books.
Sweden
In 1992, the Swedish Supreme Court considered that the book was already part of the public domain as the initial publishing company no longer existed. The Court therefore dismissed the claims of the government of the Land of Bavaria, as it considered that the Land of Bavaria was not the “heir” to the German government existing at that time.
– 4. The issues on the expiration of the copyright protection
The Bavarian Ministry of Finance may now be in favour of a new publication of the book, in a critical version, so as to avoid neo-Nazis re-publishing this book in the rough. The Central Council of Jews in Germany mentioned on several occasions that they would be favourable to a critical, scientific and scholarly version of the book for historical and educative purposes.
The advocates of a new publication consider that this new publication is necessary so as to avoid any ill-intentioned but legal new publication of the book from 2016 onwards. It would also make it possible to remove the prohibition surrounding this book, which attracts some. Finally, it is an undisputed fact that the book is available on the internet and that any person who wants to have access to it can do so.
However, a number of people, and notably some of the survivors, are opposed to such a new publication. Bavaria currently invokes its rights to take legal action against the countries which publish new editions of the book. Another example is the Gypsy community in Germany who is not in favour of the new publication.
In any case, as the copyright expires on December 31st, 2015, and the book becomes part of the public domain thereafter, it shall be possible, from that date on, to re-publish the book in the countries where the new publication is currently prohibited. However, if the new publications contain no foreword or annotations as to the contents of the book, legal action may be possible in the countries where the defence of Nazism, the incitement to racial hatred, abuse and slander or libel based on race, etc, are punished on the basis of the expression of Nazi opinions.
The expiration of the economic rights, resulting in the works falling in the public domain, was decided on the basis of the principle according to which, after a certain length time following the death of the author, works may circulate more freely to facilitate access to knowledge as well as the use and sharing of ideas. It seems rather difficult to transpose the logic of this concept which relates to any economic IP right, to a text like Mein Kampf, the contents of which are much more a tool for destruction than for creation.
– 5. About the publication of a new critical edition, with annotations and comments, for educational purposes
Reluctance in authorising the free and uncontrolled re-publishing of the book resulted from both international copyright law and the rules on the expression of xenophobia, as possibly resulting from local law. The combination of those two sets of rules made it possible to take into account the sensitivity of the millions of victims of Hitler’s persecutions, of which there are still a few survivors today.
Mein Kampf is currently accessible in several languages, including in Germany, whether it be as second-hand books, on the internet or in libraries.
Faced with such different sets of laws and the proliferation of data made possible by the Internet, there is a real risk that the new publications may be led astray, especially if the book becomes royalty-free. Therefore, one can understand the precautions which the Land of Bavaria has been taking until now to prevent, as much as possible, any publication of the book.
One may therefore legitimately wonder whether it would not be opportune to anticipate the December 31st, 2015 deadline, and whether it would not be opportune for the assigns to accept the publication of annotated versions of the book. By definition, the annotations would have to be published by rigorous researchers, with the participation of German and other international governments. The Central Council of Jews in Germany as well as some historians, such as the Institute of Contemporary History in Munich, are now supporting this view[22]. The approach consists of using local and/or international laws to deliver scientific annotations that would enable a better ‘management’ of the already existing on-line publications. This view is shared by Ian Kershaw, a British biographer and the author of the reference biography of Adolf Hitler[23].
At a gathering of historians in mid-2009, Wolfgang Heubisch, Bavaria’s Science Minister, encouraged historians to think together and indicated that: “if the book by Hitler was bound to be republished, there is a danger charlatans and neo-Nazis will usurp this infamous work when the copyright of the free Land of Bavaria runs out”.
This statement, made at the Institute of Contemporary History in Munich (IfZ), is a turning point on this issue.
Failing an academic and annotated edition of the book showing the nonsense as well as the tragic consequences of the book as required by law, it is very likely that 2016 will be an outrageous year, given the active market opportunities that exist out of the fascination sparked by Hitler and his xenophobic theories.
The toxicity of Mein Kampf, soon to become free from copyright, as well as the sanctification that resulted from any prolonged ban by copyright and from local police regulations, remind us that society is quick to forget the past. The expiration of the copyright after a certain length of time also reminds us of recent history and of the much disputed qualities of the French 1881 Act, as amended by the so-called Gayssot Act,[24] which consists of threats and denials by reference to the use and dissemination of words.
At a time of globalisation and the era of Internet, as well as the on-line publication, at no cost to the reader, of books that have become part of the public domain, the case of Mein Kampf is possible, to show that a copyright is, in the end, not suitable as a tool of total prohibition. A copyright, as well as the exclusivity it represents, may have played a useful part in the past in relation to Mein Kampf tohave made it possible to disseminate strong symbolic messages throughout the decades since the end of the biggest global conflict.
The public domain confirms the existence of arbitrariness in the protection of authors. At a session of the Congrès Littéraire International (International Literary Congress – leading to the Bern Copyright Convention), Victor Hugo had declared the following: “the public domain is dreadful, as one says on the author’s death, but it becomes excellent as soon as something expires…what is this thing? The most bizarre illusion legislators ever applied to a type of title, ie the period of time for the expropriation of a book”.
The creators of the ‘right of author’, which was initiated by Beaumarchais in France, had most certainly not contemplated that a text containing a methodical and incantatory appeal to the destruction of Jews, Gypsies, gays, the disabled, and to the submission of other people, could lead to a controversy as to copyright. Similarly, the public domain raises the issue of making available to everyone a weapon that can be included in no category, in the guise of a book laying the foundations of organised crime.
As an example of the creativity of legislators, an act in the UK made it possible, in a specific case, to maintain the payment of royalties after the expiration of the copyright protection for specific charitable purposes. It may be opportune to consider passing a similar law in each country that is aware of the responsibility of permitting the publication of such a book, at least in relation to the rights that do not relate to the comments[25]. The annotated and commented version will certainly generate royalties for the authors of the comments. It shall then be up to them to decide whether to accept to repay such royalties to organisations involved in perpetuating the memory of, and educating on, the Shoah. Also the moral right, which the Land of Bavaria shall continue to hold on the works will need to be properly managed – Bavaria will certainly have to manage any approval it gives on the quality of the suggested comments and annotations, as far as it is possible to include a set of comments, criticisms and annotations in the scope of the protection of the moral right on the book.
The above reasoning applies to Mein Kampf but also to all of the texts by Hitler, which are protected by copyright. Adolf Hitler has in fact been the author of numerous other texts, which are as fundamental and raise as many issues. This is notably the case with the “Second book” (an unfinished manuscript from 1928, which remained unpublished until 1961), which included all of the then public speeches by the Führer, all of his reported conversations, his “Table talks” or “free discussions” and his “secret conversations”, his hand-written notes or his talks, as reported by more or less credible witnesses such as Hermann Rauschning, Otto Wagener, Otto Dietrich, Edouard Calic, or Joseph Goebbels in his “Diaries”[26].
Words are not only words. They may be tools used for conditioning people’s minds, and be as sharp as knives and as explosive as glycerine. The notion of public domain has now found an unexpected ally, the online proliferation of content, which makes it necessary to teach people the context of the circulation of a book by Hitler, which could advantageously be explained to all of those who did not experience the war. The drafters of the critical edition of the book, which should also describe the book’s background, should be multi-disciplinary and comprise a panel of experts. One may wonder whether it would not be the newly-elected European president’s responsibility to exercise his powers and use his symbolic role to disseminate the following message: Mein Kampf, as a work of destruction by Hitler, cannot be described as a creative work; for this reason and in that specific situation, this work cannot become part of the public domain unless an appropriate European academic and critical edition is added thereto. In doing so, the European Union, which is based on principles of reconciliation decided after the Second World War, would be enriched with a new legal and political act as well as a stronger unifying identity.
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