Lecture held at The European Crisis Conference. St Anne’s College, Oxford April 4,1998.
By Erik Goethe
My contribution to this conference deals with some extraordinary events concerning one of the important political documents of this century.
Some parts of my contribution will perhaps invite questions from the audience for further clarification. That goes for the legal parts as well as some other parts, because the events in this matter are such that it sometimes will be difficult to believe what happened. One could perhaps say that this infamous book has regained a lot of it’s importance through a back-door.
I am speaking of Adolf Hitler’s notorious guide to the Nazi state project – Mein Kampf – and the banning of the book in Sweden.
Since World War II this book belongs to the political standard literature in all countries concerned with pursuing democratic traditions. The Hutchinson/Pimlico Publishing House in London prints it every other year. But today in Sweden it cannot be published. And, as the American intellectual Noam Chomsky asked when he heard what had happened in Stockholm:
”Should we remain ignorant of what even our worst enemies say and think?”
The German domestic attitude to this book is relatively well known. I could see it referred to, recently, in this year’s first issue of Index on Censorship, in an article by Mr. Paul Oppenheimer. He stated that ”You cannot legally purchase new copies of Mein Kampf in Germany or publish it” and that the reason is ”the embarrassment of how Germany would appear to the outside world”.
The last sentence is in fact almost a quotation from a minister of the Bavarian Finance Ministry, Mr. Franz Alscher, who said this was the very reason for the banning: ”that the German reputation abroad would be highly damaged through a publication”. In short, German authorities do not want this book printed at home or abroad for fear of current events being compared with those of the Third Reich.
To the rest of us in the outside world it signifies that Germany cannot deal with its ominous past. For the thing is that in preventing the printing of this book, allegedly for anti-Nazi reasons, the Germans apply the method of book-banning which precisely characterised the disastrous developments in earlier German domestic and foreign policy. And the sad thing about it is that the Allied Powers taught their willing pupil to do this, again, during the occupation of Germany after the war.
Of course, what the Germans do at home is not directly any business of ours. But for us in the outside world it is only rational to keep in touch with developments. Particularly so, since the EU under it’s dominant state, Germany, is constantly extending it’s legislative and judicial powers.
And of course it is quite different when the Germans ban books in other countries. And that is exactly what they have done. In Poland, and earlier in Holland with success, in Italy they failed; they tried in vain in England and in Denmark in the 1960s; and in January 1995 they tried for a while in Israel, but gave up after 8 months. And in fact they tried and sometimes managed to succeed in this same exercise in the 1930s. (As the British Ambassador in Germany, Sir Horace Rumbold noted in 1939 ”Hitler would be glad to suppress every copy of Mein Kampf extant today. Germany’s neighbours have reason to be vigilant” Ed.)
I shall give you the time-table for Sweden, because the details are extraordinary: It started in the autumn of 1992, when book-publisher Kalle Haegglund in Stockholm published Hitler’s notorious work Mein Kampf, with a foreword by Mr. Stig Jonasson.
On 23 March 1993 the German Embassy through a telefax to Mr. Haegglund expressed irritation at the publication, and claimed that Bavaria owned the copyright of the book.
On 26 March 1993 Mr. Haegglund’s legal adviser – that is myself – sent a letter to the German ambassador, formally asking for the presentation of a power of attorney from the deceased Mr. Hitler – or from his family – concerning the copyright of Mein Kampf. But I got no answer.
On 22 April 1993 Counsellor Klaus Wilde of the German Embassy half- forced his way into Mr. Haegglund’s combined office and apartment to make Mr. Haegglund accountable for the publishing. I said half-forced – because at the same time Mr. Haegglund was curious to know what Mr. Wilde was going to say.
Mr. Haegglund reported the following in a letter to one of his authors, the well-known Swedish writer and intellectual* Jan Myrdal:
At your request I will describe the very strange visit I had from the German Embassy. The visit is also pertinent to the publication of your book Det nya Stor-Tyskland (The New Greater Germany, published by Haegglund that year, 1992).
The only thing he (Mr. Wilde) said was that he wanted to ask some questions. I had a heavy cold and had been confined to my bed. I indicated that the visit was unwelcome by apologising for this, wearing only my dressing-gown, and hoped that the visitor understood that he had intruded.
He introduced himself as Embassy Counsellor Wilde from the German Embassy. He asked if we could speak in English. He sat down in his overclothes on the chair right across from me. He refused to take off his blue overcoat.
He first asked whether my business was located in different places. Then asked what I published. I gave Denis Diderot’s ‘Jacob the Fatalist’ as an example. He didn’t respond to the name, but looked nonplussed.
I added ”The French Age of Enlightenment”, still no response. After I mentioned that ”Johann Wolfgang von Goethe appreciated Diderot”, he responded with a ”yes, yes”.
He then started talking about my publication of Hitler’s Mein Kampf. He asked my why I had published it. My answer was that it was important to read Mein Kampf. He answered that ”there were differences of opinion about that”. I said that I for my part ”was a child of the 1800th Century Age of Enlightenment”. He went on by saying that the book could not be published without consent from the state government authorities in Bavaria.
I replied that German authorities might ban the book in Germany, but that we have the right to publish it in Sweden. He repeated that there were differences of opinion as to whether the book was banned from publication in Germany.
I said that I wanted a reply to the letter that my legal advisor Erik Goethe had sent to the German Ambassador regarding the possible intellectual property rights of the German state. Wilde promised ‘more material from Bavaria’.
Then he made his farewells and left. The visit lasted at the most 20 minutes.
On 28 April 1993 Jan Myrdal sent a letter of protest to the German Embassy for it’s obvious interference in Swedish domestic matters and pointed out the behaviour of the German Embassy as being unparalleled since the Second World War. * A copy was sent to the Swedish Foreign Minister.
At the time the Swedish Press paid little attention to these exciting events. The year after was different.
In May 1994 – about one year later – Bavaria sent a formal report against Mr. Haegglund to the Stockholm Prosecutor. Bavaria claimed to be the owner of the copyright to Mein Kampf. The Germans referred sweepingly to half an inch of German legal documents from the post war years.
Only five working days later Mr. Haegglund is summoned to the police for interrogation – in his capacity of being a suspect of criminal copyright infringement.
Half a year after that – in December 1994 – (about 2 days before the Swedish parliament acceded to the European Union) the prosecutor made up his mind and prosecuted Mr. Haegglund for infringement of Bavaria’s copyright. This prosecution and the provisional confiscation of the remaining copies of the book took Swedish public opinion by surprise. There was a host of protests on behalf of the freedom of the press – from the writers’ and the Book-publishers’ organisations – and through articles and editorials in the press.
Apparently this made the German ambassador Mr. Hoffman lose his head. He did something that his predecessor the Prince of Wied would never have done 58 years ago: He telephoned the editorial board of Sweden’s biggest evening paper, expressing his discontent over an article by Jan Myrdal!
In this article Jan Myrdal among other things pointed out that by reading Mein Kampf one can find an historical explanation why, under the leadership of Mr. Genscher and Mr. Kinkel, Germany smashed Yugoslavia and through their security service smuggled weapons into Yugoslavia for that purpose. Such statements in the press may annoy a German ambassador, but of course he has no right to interfere with them.
In Sweden there are very few citizens who would accept the banning of a book for political reasons. Even less would they accept this from a foreign power.
Of course, what happened was, from the purely formal point of view, not banning a book for the sake of it’s content, but for copyright reasons, even if few people believed that to be the real reason. Was there a connection with the accession to the EU? I think there was, politically. But copyright is not Community Law, so each country applies it’s own national laws in this field. It is hard to find anyone at all in Sweden, irrespective of political or social position, who would be prepared publicly to defend Bavaria’s action.
But the court proceedings had to deal with the formalities, mainly with copyright law. The Stockholm City Court and later the Regional Court of Appeal both accepted Bavaria’s claim. The grounds given by the courts were extremely vague.
Bavaria claimed to have confiscated the copyright of Adolf Hitler and of all other Nazi leaders along with their other assets and fortunes. (By the way, not only Goering gathered huge fortunes. Hitler was extremely rich, too, collecting one Pfennig for each stamp with his picture on it.) This confiscation allegedly happened on the basis of the Allied legislation in occupied Germany in the post-war years. So, if there is some genuine confusion in this legal matter, the Allied treatment of Germany after the war has a part in it. There was a death penalty for spreading the books and papers of the Nazi publishing house Eher Verlag during the first years after the war. In the circumstances that is understandable, but perhaps neither very logical nor constructive.
Should, however, the German interpretation of these post-war copyright confiscation be generally accepted, then the German authorities would have been given the right by the Allied Powers to own and administer the copyright to not only Hitler’s Mein Kampf, but to all his literary works – and the artistic ones, if anyone wants to know. And not only that, but the right to control the copyright protected works of all Nazi leaders, exclusively and all over the world. Germany would have been given the right to control the Third Reichs history.
Now, you know that Germany in fact does not do that. I am talking about what right Germany claims to have: the right to ban any of those texts or films or pictures. The material being to a great extent in non-German libraries, of course, this has some practical difficulties.
The German Embassy Councillor Wilde was asked by Swedish news media why Germany does not make criminal reports against publishing in other countries. His reply was very interesting: that Germany would not do that when they thought they would not have any success. The thing is: If Germany had effectively acquired Hitler’s copyright, then this would be accepted by courts just as easily in England or the United States as it would in Sweden, since we all have the same copyright system, based on international agreements.
The banning of Mein Kampf was legally accepted by two courts in Sweden. It has now been in force for three-and-a-half years. But on 15 December 1997 the Supreme Court of Sweden decided that it would try the case. I have no prognosis to give you. I fear the worst, considering what happened in the lower courts, but not for legal reasons. Legally, I think Mr. Haegglund’s case holds water. This kind of thing was never tried before, but I intend to give you some of the good legal reasons here, valid and important in all countries.
The effect in other nations of confiscatory measures against intellectual property in general is found in case law of many countries. But copyright was never dealt with, as it seems.
Naturally, since this case is extremely odd: The Bavarian Ministry of Finance claims to have confiscated Hitler’s copyright world-wide for exclusive German use.
Only once was this absurd idea tried in court, in Italy in 1971, but only in a lower court. It ended in complete disaster for Bavaria. The City Court of Bologna ruled, and I am happy to quote the essence of it: ”The confiscation measure through which ‘the entire property left by Adolf Hitler’ is transferred to the Free State of Bavaria is limited exclusively to the material property situated there. So, it is not possible to extend the same measure to the copyright and the disposition right of the book Mein Kampf by the deceased German dictator.”
The grounds given by the Swedish lower court, to end up with the opposite result, is based on it’s mysterious understanding of the international Berne Convention on Copyright. The court first said that it saw no reason to doubt that a transition of copyright had occurred in Germany and that Hitler’s copyright was forfeited because of criminal acts. Then the court simply said ”… a transition of copyright in the home land of the protected work entails that the new copyright-owner enjoys the same protection against infringements as the original copyright-owner…. ”.
But the court ignored that this case involves a transition of copyright by means of a foreign confiscatory public decision. Then the Convention cannot be used directly, as if it were some sort of Community Law when it is not.
If the Bavarian confiscation were to have effect in Sweden, this must be founded on Swedish rules of law. There are such rules of general property law and of international private law. Let us see what they say.
A court normally accepts a confiscation of property that is legally located on the territory of the confiscating state – at the time of the confiscation – but not otherwise.
This principle is applied by Sweden, by the other Nordic countries, by Germany, by the UK and by many other countries. This principle is reflected in Schedule 6 of the British Copyright, Designs and Patents Act, an English QC told me.
Through that schedule the Children’s Hospital for Sick Children in Great Ormond Street in London is entitled to royalties for the play ”Peter Pan” – forever (copyright does not last for ever, only for the protection period); but English lawyers would hardly claim that this applies to any other territory. Great Britain cannot legally enforce it abroad. This is normal in the intercourse between states. Each state must be allowed to decide for itself.
Concerning most kinds of property it is defined in international private law where the property is located. This is not always natural, you see, as in the case of an aeroplane or a ship – or in the case of copyright.
According to these definitions, intellectual property like patents and trade marks legally ought to be ”located” in the country where they enjoy legal protection. Swedish law does not allow foreign confiscation of trade marks to have effect in Sweden, for example.
The question of whether this position is applicable to copyright is not answered by express rules in legislation or by any Swedish court – or, as it seems, by any other court. But objective legal reasons as well as systematic ones and case law of foreign countries all speak in the direction that this should be the case. These answers have been given by (or by legal theory) in a number of countries within the Berne Union.
According to this unanimous view the confiscating country is given no right to the protection enjoyed by copyright in other countries.
But the court in this case did not apply that view. It did not even seem to recognise or understand the international private law problem of the national location of copyright.
The Court may hold that principles of international private law are not valid for copyright, it may have insufficient competence (I think not), or it may consider these principles invalid for works by Adolf Hitler. The court has nevertheless in fact applied the international private law position that a Swedish copyright is located in a German federal state – in Bavaria. It just does not say it aloud.
The lower court gives great room and attention to the question of public policy. This attention is in fact so great that one suspects that the court does not really believe in it’s own other views.
Public policy is a concept of international private law, used in order to neutralise a result, which is considered apparently incompatible with the fundamental principles of the law in the country where the court is situated. The court can in such a situation abstain from giving effect to a foreign rule.
In this connection the court implies a limited recognition of foreign confiscation that enable foreign states to forfeit copyright to works that contain ”views displeasing to the foreign state”, ”on the ground of political crimes”.
These arguments are diffuse, and of course alarming. It is difficult to see even that judgements concerning ”political crimes” should have any relevance at all in connection with copyright and international private law. The rest of the views of the court are more general political speculations about Sweden’s acceptance of the de-nazification policy in Germany. This has no relevance in law and cannot reasonably belong to an argument about public order, or even in court. What ought to be said about the de-nazification policy, if anything at all, is that the Swedish public order for the last 200 years has rejected the idea that any kind of policy at all should be pursued by the state by means of prohibiting books.
The questions that obviously should have been treated in the frame-work of public policy are avoided, namely:
* how the German confiscation should be seen in the light of the fact that confiscation of copyright is not allowed in Swedish law
* how one should look at the fact that the interest of Germany to escape displeasing attention for it’s modern history should have carried little weight compared to the interest of Swedish citizens to be allowed to inform themselves of this history.
Scholars of 20th century history in different countries agree on the importance of Mein Kampf as a document of contemporary history. Of course, the owner of a copyright decides whether he admits the copying of the work. It is also normal for him to do so.
As a foreign public subject referring to a confiscation, Bavaria would be a copyright-owner of little normality. This aspect becomes even stronger concerning Mein Kampf, where Bavaria to the best of it’s ability obstructs the distribution of the work to students of politics among the broad public of ordinary citizens. Parallel to this, Bavaria’s action did not hit one other edition in 1992, the same year as Haegglund’s edition, made for internal ideological edification in the – so far still marginal – neo-Nazi movement. This gives the Bavarian action in Sweden an obvious character of political manipulation. Why do they do this?
Why do they take action against the publishing of Mein Kampf for a perfectly above-board study of history? (By critics of Nazi Germany – Ed)
Through this case I have come to the conclusion that they do it because there is too much in Mein Kampf that is much too revealing for the current European project. One must not forget that the plans of the Third Reich for the New Europe – Neuropa – were well under way, and were in fact postponed by Hitler for the regrettable reason that he had still not won the war.
Obviously, Mein Kampf and Hitler’s Second Book which was never published in his life-time, and a lot of other writings by other Nazi leaders, are of great interest for judging the background of today’s European politics. Several of these writings and European plans clearly foreshadow the European Union of today and tomorrow.
Three years after the confiscation in this case of Haegglund’s edition, one can discern the desired effect of the Bavarian action: to withhold the main ideological document of the most ominous period of German contemporary history from critical scrutiny by the public. This creates a ”Fahrenheit 451” atmosphere in Sweden. People still disagree strongly with the confiscation. But there is no longer any public debate about it.
So it was most encouraging to read a short but lively statement in January 1998 in the Swedish press, written by Professor Johannes Andenaes. He is recently retired member of the Supreme Court of Norway, on which he served from 1946. He is also the well-known prominent leader of the exemplary judicial settlement with the Norwegian national traitors and Nazi collaborators – the ”quislings” – after the German occupation.
Professor Andenaes writes that he would not accept that a confiscation is used to obscure an important part of contemporary history and he believes that the result of the trial in the Supreme Court of Sweden will be met by interest also outside Sweden.
I hope you will recognise the importance of his words. Indeed, whatever the Supreme Court’s judgement will be, it will go down in history.
In Germany and France and elsewhere it is claimed that the banning of Mein Kampf and of other extreme right-wing publications – and of political views, and of ever so false statements concerning modern history, and of political parties – that all these measures by the state, mostly originating from the EU, are parts of a valiant anti-racist struggle. That is hard to believe.
Because at the same time the strongly anti-national direction of the European project creates what the EU claims to be fighting against. In the situation that is opening up in Europe today, where extreme right-wing political parties have established themselves at an already high level in general elections, it is very important not to leave this field open. The claims by the EU institutions that they allegedly are fighting against racism and for human rights deserve attention, but little credit.
Defence of national political independence, the development of a national consciousness and culture that includes all immigrants, the defence of freedom of speech and of the press, including all kinds of political views, and a free and open debate. These are important tasks – particularly important for two political forces, considering the composition of their electorate: Conservatism and the Labour movement. If these forces do not take these matters seriously, the quasi-fascist political forces will take over for their own purposes, as they are now doing in other countries.
RESULTS OF SUCCESS IN THE SUPREME COURT OF SWEDEN; THE SWEDISH COPYRIGHT TO MEIN KAMPF IS NOT CONTROLLED BY BAVARIA
I am most pleased to be able to report that the criminal charges against book publisher Kalle Haegglund, Stockholm, for publishing Adolf Hitler’s book Mein Kampf came to a successful end on 21st December 1998 as the Supreme Court of Sweden ruled that Bavaria has no copyright or publishing rights to Mein Kampf in Sweden. According to the Supreme Court, Mr Haegglund by publishing Mein Kampf infringed on the presumed copyright of an unidentified ‘someone else’ other than Bavaria, it was expressly clear that Germany was legally completely ‘knocked out’ and cannot make it’s extremely peculiar claim in Sweden any more. Practically all other countries can draw on this legal case and easily reject German legal claims against the publishing of Mein Kampf whenever Germany makes attempts to that effect, abroad.
As a result of this judgement Haegglund will now be republishing their commentated edition of Mein Kampf which the previous court judgement had stopped.