Thursday 8 March 2012

"Mein Kampf" - The Unreadable Book Remains Unreadable

"Mein Kampf" - An unreadable book?
In the ongoing struggle between the Free State of Bavaria (claimant) and British publisher Peter McGee (defendant) over Adolf Hitler's infamous book "Mein Kampf", the Regional Court of Munich I (LG München I) today handed down a judgment confirming its preliminary injunction of 25 January 2012 (press release available here; for the history of the dispute, see previous 1709 Blog and IPKat posts here and here).
In his opposition against the preliminary injunction banning him from publishing annotated excerpts from "Mein Kampf" under the title "Das unlesbare Buch" ("The Unreadable Book"), defendant had argued that despite Bavaria's fervent attempts to prevent publication, the book was legally available in many countries. He contended that "Das unlesbare Buch" constituted a scientific work, which quoted as little as 1% of the original work in order to provide examples for Hitler's propagandistic line of thought and the considerable inconsistencies and confusion immanent in the original text. Consequently, defendant put it to the court that copying the relevant portions of the text was justified under the quotation exception to copyright laid down in § 51 German Copyright Act (UrhG).
However, the court held that the planned publication went beyond the scope of the quotation exception. In the opinion of the judges, the presentation, content and market orientation of "Das unlesbare Buch" led to the overall impression that the publication consisted of a copy of excerpts from the original "Mein Kampf", accompanied by informed annotations. The annotations only served the purpose of providing a supplementary explanation of the original text. Primarily, the original text appeared to be supposed to speak for itself.

The court criticised that the formal arrangement of original text and annotations, which had been chosen on purpose, did not ensure a close connection between quotations and annotations. On the contrary, readers would be able to consume the original passages from "Mein Kampf" without having to pay any attention to the annotations. Consequently, there was no sufficient interrelation between quotations and annotations. 
Defendant also argued that the Free State of Bavaria had not prevented the reproduction of "Mein Kampf" in previous cases of a similar nature, and therefore granted an implied licence. As a result, it would have to treat defendant in the same way (i.e. grant him a licence). The judges did not share this point of view, distinguishing a work by another author that defendant had produced in evidence as "fundamentally different" from defendant's planned publication.

The judgment (reference: 7 O 1533/12) is not final, so there is bound to be another instalment of the "Mein Kampf Struggle" before long. Why defendant does not just wait for 1 January 2016 is anyone's guess, but it is certainly kind of him to subsidise the legal profession...

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