Blurred Lines
“Goebbels” by Peter Longerich, is a 2010 biography published by Random House Germany and its imprint Siedler. The book draws many extracts from Goebbels’ actual biography; which Longerich used as historical evidence. The daughter of Hjalmar Schacht Hitler’s Minister of Economics, Cordula -who is a lawyer- is suing the publishing house claiming that royalties should be paid to the Goebbels’ heirs in return for the usage of the extracts (Alberge, 2015). Schacht, whose argument was based on copyright laws succeeded with her suit as 1% of net retail profit went to the Goebbels family (Alberge, 2015). The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship, as long as they are original and fixed (Ashley, 2015, p.176). These rules also apply to historical documents, but whether we can also exercise them for diaries of dead war criminals is a standing moral and legal question.
First and foremost, before we start considering whether Goebbels’ diaries with unprecedented detailed information should be treated the same way as any other historical document, we need to keep in mind that the right to information sometimes leads to a suspension of copyright laws in the name of research, education, and the general interest of the public. Let’s start by looking into the main aim of copyright, it clearly states that it’s meant to protect the “investment in new ideas” and to encourage the development of science and useful arts (Ashley, 2013, p. 175), that being said we can directly think that whatever’s in a personal diary of a war criminal written between 1923 and 1945 doesn’t have much to offer in terms of information that can be build up on for the creation of new ideas, but rather it can only be build up on to add to previous historical information for research and educational purposes, this is one of the factors that judges consider, the effect of the use upon the potential market, which in this case isn’t substantial at all, and it’s purpose which is informative and educational, thus justifiable. Another factor is the nature of the work which in this case is biographical and factual, two things not subject to copyright (Ashley, 2013, p.164). In this case, the biographical data does have higher significance than others due to its historical magnitude, but it’s being protected by a private person, who isn’t of direct descent, which gives her unjustified control over research and the dissemination of history (Alberge, 2015). Lastly, we have the amount and substantiality of the portion taken, a lot in this case, but considering that the 3 previous factors are in the clear, I think it makes good justification for it to be considered as fair use, especially since it includes much research.
To move on to Goebbels’ family point of view, their initiative is justified as members of the family who carry the same last name, but do they really have a say in this when they, as well, are not of direct descent to Goebbels rather one of his siblings’? Especially with the absence of a proper publishing house to own the rights. With that mentioned, I question why the German government did not buy the publishing rights of the book just like the U.S. did with “Mein Kamp”. Also, the family’s stance isn’t completely justifiable considering Rainer Dresden, the lawyer representing Random House has found evidence of a journal entry in 1936 clearly stating Goebbels selling the rights to a Nazi state publisher, but unfortunately all the paper work has been lost due to war (Draper, 2015). Dresden also told Newsweek: “The name of Goebbels appears on a list, written by the Allied Control Council [the authority which governed Germany in the immediate aftermath of the Second World War], of war criminals whose estate was banned from financial transactions.” (Draper, 2015). The estate could have argued that publishing it interferes with individual property rights, but since they have no direct proof that they own the property as Goebbels’ family, their argument of gaining royalties is still outdated. Bearing in mind Goebbels’ had already asked for posthumous publishing.
Looking at the case from all sides and perspectives, if we weigh the plaintiff’s accusations vs. the defendants’ justifications we can clearly see that the defendants have a stronger case, especially from a utilitarian approach, since it’s based on gaining knowledge from whatever Random House wanted to publish, in the end it’s not just about fair use, but about the family apparently seeking monetary rewards, which was proven since they refused to donate the money to a holocaust NGO, and the copyright for the diary was ending 5 years after the date of publication. Also, due to the power and significance of the available information in the diary, governments should encourage their analysis, thus treating them with more importance and value than other historical documents instead of placing harder restrictions on them for personal and monetary motivations.
References
Draper, L. (2015, October 10). GOEBBELS ESTATE WINS LAWSUIT OVER DIARIES’ COPYRIGHT. Newsweek. Retrieved from http://www.newsweek.com/goebbels-estategoebbels-copyrightgoebbels-lawsuitrandom-houserandom-house-602419
Alberge, D. (2015, April 18). Random House told it should pay to quote Joseph Goebbels in biography. The Guardian. Retrieved from https://www.theguardian.com/books/2015/apr/18/random-house-told-it-should-pay-to-quote-joseph-goebbels-in-biography
Packard, A. (2013). Digital Media Law. Available from https://www.wiley.com/en-us/Digital+Media+Law%2C+2nd+Edition-p-9781118290729
