Copyright and the Holocaust

53 Pages Posted: 23 Apr 2018 Last revised: 30 Apr 2018

See all articles by Guy Pessach

Guy Pessach

Hebrew University of Jerusalem - Faculty of Law; Yale University Law School - Affiliate Fellow, Information Society Project

Michal Shur-Ofry

Hebrew University of Jerusalem, Faculty of Law

Date Written: April 14, 2018

Abstract

This article explores the interface between copyright law and the Holocaust.

The Holocaust’s duration and scope, its occurrence in midst of the twentieth century with photography and film technologies already available, and its setting at the heart of Europe, yielded countless documents, diaries, notes, memoirs, musical works, photographs, films, letters, and additional artifacts. On the victims’ part, many of those items — including secret archives comprised at various ghettos, music composed in concentration camps, and personal diaries — manifest an explicit act of real-time historical documentation for future generations. On the perpetrators’ side, some materials were produced as a result of organized documentation, others — such as Joseph Goebbels’ diaries or Hitler’s Mein Kampf — comprise records of prominent figures in the Nazi regime. Numerous Holocaust-related materials are still subject to copyright protection. Yet, the impact of copyright law on the memory of the Holocaust remains largely unexplored.

This article engages in a first systematic exploration of the copyright-Holocaust interface and presents a twofold argument. First, we demonstrate that copyright law plays a heretofore-unnoticed role in shaping the collective memory of the Holocaust. Second, on a normative level, we argue that the prevalent narratives underlying copyright law, as well as ordinary copyright doctrines, do not comfortably apply to Holocaust-related materials, and that this state of affairs yields socially undesirable consequences. The latter include, inter alia, victims’ works created with the explicit goal of documenting the Holocaust that may remain in the file-drawer due to copyright concerns, as well as ordinary copyright protection applying to infamous Nazi materials, thus providing their owners with certain influence over the Holocaust’s narrative. By closely examining various case studies, we analyze the principal tensions between the copyright regime and the Holocaust and offer several concrete recommendations concerning the application of copyright law to Holocaust-related materials. On a more general note, our analysis sheds new light on copyright’s impact on collective and intergenerational memory.

Keywords: Copyright Law; The Holocaust; Collective Memory; Copyright and Morality; Social Memory; Fair-Use; Digital Preservation; Intellectual Property

Suggested Citation

Pessach, Guy and Shur-Ofry, Michal, Copyright and the Holocaust (April 14, 2018). Yale Journal of Law and the Humanities, Forthcoming, Hebrew University of Jerusalem Legal Research Paper No. 18-18, Available at SSRN: https://ssrn.com/abstract=3162530

Guy Pessach (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Yale University Law School - Affiliate Fellow, Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Michal Shur-Ofry

Hebrew University of Jerusalem, Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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