Wednesday, March 12, 2008

The Anschluss and Expropriation of Jewish Copyrights in Europe

Today is the 70th anniversary of the Anschluss. Wikipedia (hardly the only source to consult for this epochal event) states:

[T]he 1938 Anschluss, regardless of its popularity, was enacted by Germany. Earlier, Nazi Germany had provided support for the Austrian National Socialist Party (Austrian Nazi Party) in its bid to seize power from Austria's Austrofascist leadership. Fully devoted to remaining independent but amidst growing pressures, the chancellor of Austria, Kurt Schuschnigg, tried to hold a plebiscite.

Although he expected Austria to vote in favour of maintaining autonomy, a well-planned internal overthrow by the Austrian Nazi Party of Austria's state institutions in Vienna took place on March 11, prior to the vote. With power quickly transferred over to Germany, the Wehrmacht troops entered Austria to enforce the Anschluss. The Nazis held a plebiscite within the following month, where they received 99.73% of the vote. No fighting ever took place and the strongest voices against the annexation, particularly Fascist Italy, France and the United Kingdom (the "Stresa Front"), were powerless or, in the case of Italy, appeased. The Allies were, on paper, committed to upholding the terms of the Treaty of Versailles, which specifically prohibited the union of Austria and Germany.

Austria ceased to exist as a fully independent nation until late 1945. A Provisional Austrian Government was set up on April 27, 1945, was legally recognized by the Allies in the following months but it was not until 1955 that Austria regained full sovereignty.

In addition to the eventual slaughter of 6 million Jews in the Shoah, came the seizure of their property. The seizure by the Nazis of artwork owned by European Jews has been the subject of books, articles, and court cases. Ray Dowd, a partner in Dunnington Bartholow & Miller LLP in Manhattan has undertaken a heroic effort to recover some of these works for the heirs of the original owners. But what about the seizure of Jewish copyrights? In 1946 to 1947, the Austrian government passed three restitution acts. The first, in July 1946, covered only property expropriated by a governmental authority and which was then in the hands of a governmental authority. The second, from February 1947, covered property, “which had fallen to the Republic as a result of the Nazi-prohibition or was-crime laws.” The third act, passed the same day as the second, was broader, and created a basis for restitution that occurred by acts of expropriation by individuals. Expropriation of copyright (and patents) was expressly mentioned in the third act.

In Appendix 1 to a Press Release by the Austrian Historical Commission, issued on February 24, 2003, page 18, coverage of copyrights by the third restitution act was recounted, but the commission noted that no steps had ever been taken to provide restitution. My information from those who looked into the matter last week is that no steps have been taken since 2003. It may be that few copyrights were expropriated – after all Jewish art (and those of others deemed morally deviant) was condemned by the Nazis as “entartete Kunst” (Degenerate Art).

Yet, this did not prevent the Nazis from seizing the physical works of art for their own collections, or selling them for money. Still, it is hard to see of what value seizing Jewish copyrights would be: the Nazis would hardly be bringing infringement suits or licensing them for exploitation in other countries. Nevertheless, it is an area that I have wondered about but not read anything about, and I am curious whether European scholars have looked into the question, in any of the Axis powers.

The U.S. government has a long history of expropriating copyrights and patents from citizens of countries we go to war with. On October 6, 1917, President Woodrow Wilson approved the Trading with the Enemy Act, permitting the government to seize title to the intellectual property of enemy authors. An Office of the Alien Property Custodian, in the Justice Department, was set up for this purpose and issued numerous vesting orders pursuant to which enemy copyrights were seized. Under these orders, the government was authorized to, and did, issue licenses to U.S. citizens to use and publish copyrighted works of enemy authors seized under the Act. The general purpose of the orders was not, however, entirely confiscatory. Vesting orders were also used to encourage the reproduction of scientific works helpful to the war effort under circumstances where normal licensing conditions were not possible.

Although the Office of the Alien Property Custodian was abolished in 1934, the Office was reestablished under the First War Powers Act following the declaration of war on Japan, Germany, Italy, Romania, Bulgaria, and Hungary in 1941.

The Alien Property Custodian was quite active during World War II, and the numerous vesting orders recorded in the Copyright Office caused the Office considerable work. By fiscal year 1944, 185,102 titles had been recorded, with 146,690 waiting to be indexed. Royalties of $5 million were collected and deposited with the U.S. Treasury from the exploitation of musical works such as Puccini operas, books such as Mein Kampf and Goebbels's diaries, and films such as The Blue Angel. Approximately 700 scientific books and 3,200 issues of foreign scientific periodicals were licensed under the orders.
See generally Martin Domke, Trading with the Enemy in World War II 273–295 (1943); Martin Domke, The Control of Alien Property 189–190, 308 (1947).

After the conclusion of World War II, the War Claims Act of 1948 was passed. This Act provided, inter alia, for the satisfaction of U.S. war claims from funds obtained from the sale or licensing of seized intellectual property. At the same time, title to copyright was returned to the rightful foreign author or his or her heirs in a number of cases.
In 1962, legislation was enacted providing that where copyrights had not already been returned to enemy authors by the Alien Property Custodian or the Attorney General, all copyrights seized were “as a matter of grace” returned to the authors or their heirs. All unpaid royalties were, however, to be paid to the Attorney General.

In the 1994 GATT implementing legislation, an exception from restoration pursuant to Section 104A(a)(2) is provided for “Any work in which the copyright was ever owned or administered by the Alien Property Custodian and in which the restored work would be owned by a government or instrumentality thereof … . ” The purpose of this exception is to ensure that the German and Japanese governments do not receive protection for their wartime works. The exception does not apply to works created by individuals.

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