(Posted by Peter Hirtle)
There is an interesting post over at Rich Stim's blog, Dear Rich, on whether Nuremburg Trial transcripts are in the public domain. Stim is responsible for much of the copyright overview text available through Stanford's Fair Use web site, and his blog is a light-hearted but knowledgeable look at copyright, patent, and trademark issues.
I was interested in this post for a number reasons. First, early in my career while I was employed at the National Library of Medicine, I worked with its collection of transcripts and documents from the medical trials. And I have had a very slight connection with the Cornell Law Library's project to digitize its collection of transcripts, which consists of the personal copies in the possession of William "Wild Bill" Donovan, the father of the CIA.
Most of all, I was struck by Stim's honest answer: "The good news is that you can use the transcripts. The bad news is that we're not 100% sure why." I agree entirely with Stim, though I might quibble over some of his analysis. For example, he notes that the court stenographers who made the transcripts would not have a copyright in the US in their work. He does not address, however, whether the people who testified may have had a common law copyright in their testimony. If we assume that the speakers authorized the stenographers to "fix" their words in the transcript, that common law copyright could have been turned into a statutory copyright by the 1976 Copyright Act. As for the documents included in the trial material, one might assume that the copyright in most of them would have belonged either to the Nazi Party or to the German government. While 104A(a)(2) was passed in part to make sure that Nazi publications do not receive copyright protection in the U.S., this would apply only to published items. (And the recent lawsuit over a UK's publisher plans to reprint Nazi newspapers as part of a source material collection on World War II demonstrates that even the copyright status of published Nazi materials can be problematic.) Stim correctly points out that the translators could have a theoretical copyright in their work product, but assumes that the translators were all government employees which would mean that their work is in the public domain. My vague sense is that some German contractors were hired to do some of this work, and so the government might own the copyright they produced (as work for hire). Further complicating the issue is the fact that the trials were actually conducted under the auspices of an International Military Tribunal. Their published proceedings may actually have had copyright restored.
The bottom line is that, as in this case, it is often very difficult to establish with certainty what is the copyright status of a particular work. Uncertainty over the copyright status has not stopped numerous publishers from reprinting the works, however, nor has it stopped the Library of Congress from digitizing and making available all 42 volumes in the Official Series. We often want legal certainty when we think about digitization projects. What we should be asking instead is whether what we want to do useful, and how likely it is that anyone would object.