Pessach and Shur-Ofry on Copyright and the Holocaust @HujiLawOfficial

Guy Pessach and Michal Shur-Ofry, both of the Hebrew University of Jerusalem, Faculty of Law, are publishing Copyright and the Holocaust in the Yale Journal of Law and the Humanities. Here is the 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.

Download the article from SSRN at the link.