From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Friday, 4 September 2015

Criminal Copyright: Should Copyright Protection not be Given to Works by Criminals?

Crime doesn't pay, or so they say even when some (nearly) dash away with millions of pounds worth of jewellery in broad daylight in London. No matter what your crime has been, be it big or small, one should not be able to benefit from that crime financially, so as to not encourage others to take the same route with the aim to benefit in a similar fashion. With this in mind, could a criminal, even when their crimes are unrelated to the IP rights conferred, benefit from those rights in the light of their criminal status?

This Kat is a big history fanatic, and has spent a great deal of his youth reading about a variety of historical topics; a prominent one of which was World War II. For those less familiar with the topic [although this Kat would be surprised if someone would not be aware of this individual], Joseph Goebbels, the propaganda minister for the Nazi regime in the 1940s, was instrumental in the success of the regime in its early days, especially in relation to the rising disdain towards ethnic and religious minorities in Germany and the rise of the party in general in its formative years. Along with his prolific writings during that time, he also kept a meticulous journal of his plans and events that occurred, proving a very valuable insight into the lesser known facets of the regime itself through a figure that was instrumental to its success and ideologies.

Anyone can be evil, no matter how fluffy
Joseph Goebbels' journals were subsequently used for the writing of a biography of the controversial figure by Peter Logenrich, published by Random House this year (although it was published 5 years ago in Germany). After the publication of the biography Cordula Schaht, the daughter of Hjalmar Schaht, the minister of economics for the Nazi government, sought to reclaim royalties on the sale of the book, since the journals Joseph Goebbels wrote during his lifetime were used heavily in the book, often copying paragraphs or excerpts verbatim. The diaries and all rights to the works were given to Mr Schaht upon the death of Joseph Goebbels.

In their argument, although outside of court, Reiner Dresen, counsel for Random House, argued that no royalties should be paid to Ms Schaht as " money should go to a war criminal". Due to his heavy involvement in the Nazi regime, Random House clearly believed that they had a moral obligation to withdraw payment due to the heinous crimes committed during this time. Mr Dresen also relied on a non-moral argument, as Mr Goebbels was included in a list by the Allied Control Council, banning his estate from any financial transactions (possibly to prevent any moving of financial assets outside of Germany, unduly gained during WW2).

The Munich District Court saw otherwise [and if any readers would have access to the case, this Kat would happily update the post with it], and awarded Ms Schaht her due royalty payments, although highlighting the expiry of any rights in the works in the end of 2015, which marks 70 years from Joseph Goebbels' death. Random House has indicated that they will appeal the decision to the German Supreme Court, but whether their case has any likelihood of success is uncertain.

The case made this Kat ponder, should copyright take morality into account when awarding protection or the benefit from said rights? What do our readers think? Arguably, when looking at the Copyright, Designs and Patents Act 1988, the answer would be no, as protection is awarded to any work, irrespective of the author's past or the work's content. This is important, since who would be the judge of what is morally acceptable or who is worthy of copyright protection; a question that is ripe with subjectivity and uncertainty.


Anonymous said...

Didn't the German authorities use copyright law to stop the publication of Mein Kampf, arguing that the copyright passed to the Bavarian state after the author died with no heirs? If so, this case is simply applying the same logic that the law applies even if the creator of the copyright work committed war crimes.

Jani Ihalainen said...

Anonymous @ 13:29

They did run this argument, and it was refused by the Bavarian government it seems:

Dresen has pointed to evidence from a journal entry from 1936 when Goebbels sold the rights to Nazi state publishers. He believes this should transfer the copyright to the Bavarian government. "Bavaria is not interested," he told Newsweek, "'Show me the author's contract' they said, knowing the archives were destroyed at the war's end.

THE US anon said...

To mirror another thread, the writings of the master propagandist see reflections aplenty in the attack on patents.

Meldrew said...

If the law is morally agnostic it is morally bankrupt.

There should be moral wrongs to match moral rights.

Time to hunt out that snuff movie I made?

THE US anon said...

Ah Meldrew, you dare to tread in dangerous waters.

Law and morality are a dangerous mix, as the most immediate question arises without a suitable answer:

Whose morality?

The number one cause of human death from another human throughout history has been in large part attempting to enforce one group's view of morality over another's.

Even today, in our "civilized" world, one looks at the most depraved acts and sees them being committed in the name of "morality" - leastwise in the guise of "religion."

i am reminded of John Lennon's missive: imagine

Imagine there's no heaven
It's easy if you try
No hell below us
Above us only sky
Imagine all the people
Living for today...
Imagine there's no countries
It isn't hard to do
Nothing to kill or die for
And no religion too
Imagine all the people
Living life in peace...

But alas, we all must deal with the real world with real people in the here and now.

Law then, is just not meant to be replaced with morality.

Tim said...

US Anon, the 'law' is the means by which we 'enforce' and therefore each time we need to ask is this right? We are bound to each other, and so we need to ask how will we behave and at what point do we step in to help the weak and to stop others doing what they are doing. It is better to accept that and call it 'morality' and deal with it, rather than shying away from the complexity. Your viewpoint is the valuable lesson that we don't automatically have a right to impose on others, but there is a huge debate to be had about 'when do we impose?'.

THE US anon said...


We will have to agree to disagree because here in the States it is widely known that the two are not in fact the same thing.

In other words - the very question I lead in with STILL needs to be answered.

Perhaps it is the fundamental nature of this country, but the sharp divide between Church and State demands a different viewpoint than the one you wish to offer.

To your own question, then of "when?," there is an even more prominent one. Even if (and that is a stretch I grant you), "when" is answered, if you have not answered my question, then you are still nowhere.

Meldrew said...

U.S. Anon

I had always thought of law as codified morality with a dash of expediency, not a thing to worship in its own right.

As for "Imagine", are you saying that humanism is not morality?

THE US anon said...


Quite to the contrary, humanism is yet another version of morality that is thrown into the mix of the question I put forth: WHOSE morality?

Meldrew said...

U.S. Anon

So are you amoral and follow the law whatever it says?

Anonymous said...

"With this in mind, could a criminal, even when their crimes are unrelated to the IP rights conferred, benefit from those rights in the light of their criminal status?"

Have you really thought this through? Are you saying that there should be no copyright protection for anything by Rolf Harris? Or Jeffrey Archer? Paul McCartney? Mick Jagger?

(UK Anon)

Jani Ihalainen said...

UK Anon,

The question I posed was merely a prelude to the following discussion. As I concluded in the last paragraph, one could argue that morality has no place in copyright protection (i.e. criminal or not, you'll benefit from the copyright seeds you've sown), allowing for the individuals you've mentioned to firmly benefit from all that copyright offers.

THE US anon said...


Your question, personal to me, is quite besides the point - and at the same time makes my point.

Look at it this way: whether or not I personally am amoral matters not at all. The distinct possibility of someone being amoral and still fitting into society because that person follows the law whatever it says reinforces the difference between morality and law.

Whose morality?

Roman Catholic?
Born again?

Anonymous said...

I am not sure what this discussion has to do with IP but in a democratic society, the laws are placed on the statute by the party or parties having a majority of votes and hence the law represents, in an ideal world, the morality of the majority.


Meldrew said...

U.S. Anon

Depends what country you are in?

THE US anon said...


Law depends on what country you live in.
Morality does not.

You keep on making my case for me... ;-)


The discussion has little to do with IP (other than to distinguish that IP is a legal and not a moral thing, which happens to be the point of discussion for this thread). And perhaps in a particular nod to Meldrew, my particular country has expressly built in safeguards against a pure "majority decides." The notion of democracy is a bit more nuanced than that. So unless you are going to assume your own conclusion of law and morality being the same, you have not advanced the discussion and have, in fact, not recognized the actuality that they are not the same. Further yet, I would posit that in an "ideal" world, law would not be necessary, but then we would be hedging into a different (albeit related) question: Whose ideality?

Dave said...

@THE US anon

Not sure an ideal world does not require laws. Surely free agency requires the potential for conflict, and the way to mediate conflicts of interest is with a legal framework (which I think has to based on some societal consensus of what is moral)? Unless we all just happen to agree about everything, which I think would be rather boring.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':