Republication of "Nazi newspapers" - verboten?

The IPKat has been monitoring for a while a developing story in Germany about the ongoing battle between the Bavarian State government (Bavarian Ministry of Finance) and a British publisher concerning the republication of a series of historical newspapers, including historical Nazi newspapers.

In January 2009 the German media reported about the confiscation of 280 copies of a reprinted Nazi newspaper by Bavarian officials. One the face of it, the case seemed clear: publishing Nazi propaganda is illegal in German and a criminal offence. However, things were not that straight forward, since it transpired that the objectionable publications were part of reprint series which had previously been praised by historians. The publisher Albertas, a British company, appears to have offered facsimile reprint copies of historical newspapers in several European countries. It was also reported that the reprint series Zeitungszeugen (in English: newspaper witnesses) came with an outer layer of pages that included commentaries explaining the historical context of the original publication and the Nazis' propaganda tricks.

According to German media reports (and the Bavarian Ministry of Finance's website) the state of Bavaria holds the copyright for many of the Nazi publications, such as the Voelkischer Beobachter, after it took over the rights of the main Nazi party publishing house Eher-Verlag after the end of World War II as part of the Allies' de-Nazification programme. Bavaria has so far not allowed unannotated reprints of these publications due to the Nazi propaganda content. What is allowed are reprints of parts of articles put in the proper context and combined with historical scholarly comments. In the current case, the Bavarian state also objected to the reprint because the educational comments were only included in the covering pages of the reprint. Once the outer cover pages are removed, which reportedly is easily done, the newspaper looks exactly like it did during Nazi times--something which the Bavarian state does not want see published. The Bavarian state has so far taken a similarly strict approach when it comes to the possible re-publication of Adolf Hitler's Mein Kampf (My Struggle) in Germany, which has not been republished in its entirety in Germany since the end of World War II. It should be noted that the Bavarian State did not question that Albertas was an an educational publisher.

German magazine Der Spiegel reports that, even though some historians have tried to publish a scholarly annotated version to demystify the content once and for all, the Bavarian state has far reportedly refused to give consent. As copyright holder, Bavaria has refused to allow the book to be republished in its entirety, on the grounds that it would promote right-wing extremism. In the case of Mein Kampf, it will have to be seen what Bavaria will do after 2015 when the copyright for Mein Kampf will expire 70 years after the death of its author. The IPKat has done some research himself and has seen that interestingly Mein Kampf is available freely in the UK via Amazon.

By February it was reported that Bavarian state officials had confiscated more than 3,200 reprints of an edition of Voelkischer Beobachter and that prosecutors had launched criminal proceedings against the publisher on the grounds of copyright infringement and the publication of Nazi emblems, which is a criminal offence under the German Criminal Code. The German newspaper Die Zeit reports that the Bavarian government had enough after the second edition of Zeitungszeugen (which included copies of several historical newspapers, such as the social democratic Vorwärts, the liberal paper Vossische Zeitung, as well as the NSDAP Nazi paper Völkischer Beobachter) also enclosed a reprint of a historical poster showing the Reichstag on fire with a call for voters to vote for Adolf Hitler in March 1933. The poster also called to destroy the social democrats and communism and it showed a depiction of the swastika. The edition of Voelkischer Beobachter further included a commentary written by notorious Nazi propaganda minister Goebbels.

Wilfried Krames, a spokesman for the Bavarian justice ministry is cited by the BBC as saying: "The criminal proceedings are under way and the prosecutors are taking this case very seriously." He is further cited as having said that "... because of our country's history, there are regulations in Germany's criminal code which govern the use of Nazi symbols." "Even a reprint of a Nazi newspaper is unconstitutional because the publisher is still reproducing Nazi emblems and this also represents a breach of copyright law".

The British publisher Peter McGee (Albertas) behind the Zeitungszeugen sees matters differently and wants to make the historic content available to the public. He reportedly sought advice from German historians and is quoted as saying that Zeitungszeugen should be read by people who "...would never read a contemporary history textbook, but still value quality analysis of the information". Mr McGee sees an infringement of freedom of press and doubts that the Bavarian state owns the copyright in the Voelkischer Beobachter. His lawyer Ulrich Michel is quoted (again by the BBC) "... even if the state of Bavaria were the rightful owner, under German copyright law, you are allowed to use and publish these works for scientific purposes." "The purpose of the project is scientific. Zeitungszeugen was compiled with the help of 10 renowned historians and other scientists, including the director of the Holocaust Research Centre at the Royal Holloway College in London". Mr Michel reportedly also sought the advice of two (unnamed) university professors in criminal law, which he says have confirmed the republication of the Nazi newspapers would not constitute a criminal offence "... because the law only applies to propaganda material which was published after the German constitution was drawn up in 1949, and not to material which was published before". And even if, the "... law does not apply when the publishing is done for educational purposes." Albertas also states that similar publications in Austria were supported by the Austrian Ministry of Education and without the Bavarian state complaining. Albertas appears to be determined to fight this matter all the way, if necessary to the German Federal Constitutional Court and to the ECHR.

The Sueddeutsche Zeitung reports that the third edition of Zeitungszeugen has now been published in an edited version, which only included the editor's comments but does not include a copy of the actual newspaper. However, the edited version appears to include a coupon which allows the interested reader to order a copy of the actual paper(s). The Sueddeutsche Zeitung also expects that this matter will soon go to court. However, according to Zeitungszeugen's website, edition four of the Zeitungszeugen is again published in its entirety.

This German Kat has mixed feelings about this matter, which has clearly raised several questions. The question of copyright infringement has to be separated from the criminal law question. There is certainly an argument that this kind of republication could be covered as a "quotation" by section 51 No. 1 of the German Copyright Act (so-called "Grosszitat"), which also covers complete republications of newspapers. Section 51 No. 1 of the German Copyright Act ("Quotations") stipulates that "...the reproduction, distribution and communication to the public shall be permitted, to the extent justified by the purpose, where ... individual works are included after their publication in an independent scientific work to illustrate its contents".

Furthermore, does the republication fall under the relevant provisions in the German Criminal Code (StGB) or is there a "get out of jail free card" that it is a historical research and educational? The relevant Criminal Code provisions are in section 86 and 86a StGB. Section 86 StGB (Dissemination of Means of Propaganda of Unconstitutional Organizations) rules that:

(1) Whoever domestically disseminates or produces, stocks, imports or exports or makes publicly accessible through data storage media for dissemination domestically or abroad, means of propaganda: (...)
4. means of propaganda, the contents of which are intended to further the aims of a former National Socialist organization, ...shall be punished with imprisonment for not more than three years or a fine. (...)

However.... (3) Subsection (1) shall not be applicable if the means of propaganda or the act serves to further civil enlightenment, to avert unconstitutional aims, to promote art or science, research or teaching, reporting about current historical events or similar purposes.

Section 86a StGB governs the "Use of Symbols of Unconstitutional Organizations".

This Kat personally has a rather uneasy feeling about publishing historic Nazi content which can be spread further - potentially without any annotations or comments. Yes, Zeitungszeugen's early two editions did include these historical comments but only in their covering pages, which reportedly could be easily removed and the newspaper could then have been passed on. Would this "naked" copy still be an educational copy? Should an educational copy not have the educational content attached in way so it can't be easily removed from the reprinted part? Or would demanding this add additional hurdles that are potentially unconstitutional? This Kat is also aware that moral questions should not be confused with legal issues but sometimes it is not that easy - there is also the question of respect for the victims of the Nazi era. Would that mean rewriting the law?

There are also potential constitutional issues. Freedom of expression, which is protected as a basic human right in Article 5(1) Basic Law/German Constitution is most likely affected. Furthermore, Article 5(1) Basic Law also states that there "...shall be no censorship". Freedom of research, which is equally protected as a basic human right in Article 5(3) Basic Law, could be affected keeping in mind that Article 5(3) Basic Law also stipulates that "...the freedom of teaching shall not release any person from allegiance to the constitution."

The IPKat will continue monitoring this case and is looking forward to readers' comments.

The press release of the Bavarian Ministry of Finance of 16 January 2009 can be found here.
The press release of Zeitungszeugen of 16 January 2009 can be found here (both in German).