Do War Criminals Have Copyrights? The Role of Morality in Controversial Works

At first, a request for royalties by the estate of Nazi propagandist Goebbels was considered a joke by counsel for Random House. But the publisher now finds itself in the middle of a legal controversy after releasing a biography about the notorious World War 2 Nazi, which largely draws from Goebbels’s diaries.

Joseph Goebbels acted as the minister of propaganda to Adolf Hitler during the German Nazi regime. The biography outlines that his propaganda prowess supported Hitler’s power, prolonged the Second World War, and fuelled hate and mistrust towards Jewish individuals. From 1924-1945, Goebbels meticulously recorded his strategic plans for the Nazi regime in his diaries. Random House initially agreed to pay a royalty fee for their use but later recanted, arguing it had objections to paying a war criminal’s estate.

Random House presents two arguments for its position, namely that (1) the claim is immoral because the estate wants to benefit financially from Goebbels’s work, and that (2) the government ought to own the copyright to historically controversial works. The author of the biography, Peter Longerich, extensively quotes from Goebbels’s diaries and infers about Goebbels’s personality traits from the their contents. Longerich states in the book that the diaries are “the basis of [the] biography and one of the chief sources for histories of the Third Reich”. However, they are copyright protected until the end of 2015, and claim to be owned by Cordula Schacht, daughter of Hitler’s former minister of economics.

Random House explains that the diaries should be exempt from copyright protection due to their lack of morality. In most countries copyright is content neutral. This means that copyright protection persists irrespective of the work’s quality or morality. For example, section 5 of the Canadian Copyright Act states that copyright subsists in every original literary, dramatic, musical and artistic work” [Emphasis added]. While this supports freedom of expression, it also protects material that some may regard as immoral. Certain countries indeed consider morality and public decency when determining whether a work is copyright protected. For example, until last year pornography was unprotected in Taiwan due to its indecent nature. Recently, their IP court ruled that some types of offshore pornographic videos may be copyright protected. Therefore, morality may influence whether a work is copyright protected in some countries.

Furthermore, Longerich expressed that vital historical documents should not be protected by copyright. The diaries are important because they describe the beginning, success and eventual demise of the Nazi regime. Goebbels recorded and drafted many of his propaganda ideas within these documents, which present an invaluable insider perspective. Counsel for Random House also argues that Goebbels intended for the government to own the copyright, and challenges Schacht’s claim to the documents. Similarly, the copyright to Hitler’s ‘Mein Kampfbelongs to the Bavarian State in Germany. Dresen’s argument that the copyright should belong to the government has merit because it is unclear if and how Goebbels transferred his rights to Schacht’s family before his death. No contracts or known records that could indicate this transfer survived the war. And, it may be more appropriate for governments to own copyrights to historically controversial works, so that financial benefits can proceed to charitable causes.

Copyright law necessarily balances user rights with author rights. This bargain allows an author to share their ideas in exchange for economic rights. Subsequently, the author attains the right of ownership, and the right to exploit the work as an article of commerce. Therefore, although Random House maintains that it is immoral to financially benefit from this literature and that the government should own the copyright, it is unclear whether its two arguments will succeed.

Last month, the Munich Higher Regional Court ruled in favour of Schacht, stating the estate was owed royalties for the use of the diaries. However, Random House is appealing this decision because it strongly believes that nobody should benefit financially from the works of war criminals. It will be up to the German Supreme Court to decide whether morality has any influence on German copyright laws.


Gosia Piasecka is an IPilogue editor and a JD Candidate at Thompson Rivers University Faculty of Law.

One Comment
  1. It is difficult to see past the obvious policy problems of allowing copyright protection to subsist in works associated with evil, although, as the Nuremburg trials contemplated, respect for the rule of law must be paramount when considering the legal status of any part of an illegitimate regime. Denial of copyright protection is scarcely contemplated by the Berne Convention, leaving member states a small degree of room in which to interpret the possibilities. ‘Illegal’ works are generally included as protected by copyright, provided they are sufficiently original. The complexity of this case is compounded further by the acknowledgement that Goebbel’s works were lawfully produced.

    There are further policy concerns in creating a precedent for government ownership of the copyright in private work in cases of public interest. I suggest that the exceptions to copyright, under s.29 of the Copyright Act, should be sufficient to allow for public interest-based uses to escape the censure that might result from the owner trying to assert their copyright. In Canada, it has been affirmed by the Supreme Court in CCH that fair dealing is not limited to non-commercial contexts. As such, a book of any educational merit should be exempt, subject to the six-part analysis provided by the Court. I would suggest that it is at this stage that any claims of infringement would be extinguished, largely on the enumerated grounds of purpose, character and nature. The existence of user rights, formulated as they are, can serve to protect the public interest without damaging the fundamental nature of copyright protection.

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