New insights into enemy copyright

Roland Wigman is a lawyer at Liaise in Amsterdam. His advisory work has included the copyright in the diaries of Joseph Goebbels and the rights in the feature film Der Ewige Jude.

This contribution discusses the Dutch State’s claims to the copyrights of former enemies and traitors in relation to the Second World War. Among other things, the article sets out the statutory framework and, on the basis of archival research, offers new insights into the exploitation and the restitution of enemy copyrights.

Introduction
The publication of NSB newspapers online by the Koninklijke Bibliotheek (the National Library of the Netherlands) set a good many journalists’ pens in motion. The debate in the media centred mainly on whether that publication might be a criminal offence under article 137e of the Dutch Criminal Code. The Ministry of Justice and the National Library, however, indicated in their statements that the question of who owns the copyright in the publications concerned is also relevant. After all, if the copyright were to vest in the State, the State could potentially prohibit publication on the basis of that copyright.

This article addresses the question of who owns the copyright in works created before the end of the Second World War by those who were then enemies and traitors. The statutory framework is set out first, in which the Enemy Property Decree plays an important role. This is followed by a discussion of the concepts of property, enemy nationals and traitors. The legal basis for the transfer of ownership to the State is then considered, and the exploitation of enemy and traitors’ copyrights after the war is outlined. Finally, the question of the restitution of enemy copyrights is addressed. Research in the sources held by the National Archives in The Hague yielded new insights here.

Statutory framework

Towards the end of the Second World War, the Dutch government in London was already occupied with the organisation of the Netherlands after the imminent liberation. The restoration of legal relations formed an important aspect of this, as did recovering war damage from enemy property.

The restoration of legal relations in the Netherlands was governed (principally) by the Decree on the Restoration of Legal Relations, while recovery from enemy property was regulated in the Enemy Property Decree (hereinafter: the EPD). The latter decree is the most relevant for this contribution. In short, the EPD provided that the property of enemy states and enemy nationals passed to the State, while the property of traitors was placed under administration.

The EPD and the Decree on the Restoration of Legal Relations provided for the establishment of a Council for the Restoration of Legal Relations and an Administration Institute. The Council for the Restoration of Legal Relations was tasked with steering the restoration process, and its Judicial Division had jurisdiction to give judicial decisions in restitution matters, among others. The Council also had an Administration Division. Part of that division was the Netherlands Administration Institute, which was to administer enemy property and traitors’ property. The Council and the Administration Institute were formally established after the liberation by Royal Decree of 9 August 1945.

Explanatory notes to the EPD and the Decree on the Restoration of Legal Relations did exist, but they were not published initially. Only in 1947 were they published by the State Publishing House, ‘in response to the desire widely expressed to that effect’. In 1946, however, a commentary on the Decrees on the Restoration of Legal Relations and on Enemy Property had already appeared, written by W.C.L. van der Grinten. Both sources have been drawn on extensively for this article.

Also of importance is the Decree on the Dissolution of Traitorous Organisations of 17 September 1944. Under that decree, the National Socialist Movement (NSB) and organisations related to it, as well as other national-socialist and fascist organisations, were dissolved. Pursuant to article 3(1) of that decree, the property of the dissolved organisations passed to the State. The decree is accompanied by a list naming the organisations to which it applies. Those organisations include the Nederlandsche Nationaal-Socialistische Uitgeverij (Nenasu), publisher of, among others, the NSB papers Volk en Vaderland and Nieuw Nederland, which the National Library has put online.

Finally, the peace treaties and settlements likewise contained provisions on the settlement of war damage, including the Peace Treaty between the Allied countries and Italy of 1947, which is discussed below.

The Enemy Property Decree

The EPD contained the legal basis on which the property of enemy states and enemy nationals passed to the Dutch State. Article 3(1) and (2) of the EPD provided:

‘1. Property belonging to an enemy state or to an enemy national shall, upon the entry into force of this decree, pass by operation of law into the ownership of the State, subject to the provisions of articles 25 to 28 of this decree.
2. Property which accrues to an enemy state or an enemy national after the entry into force of this decree shall thereupon pass by operation of law into the ownership of the State, subject to the provisions of articles 25 to 28 of this decree.’

This section first explains what the EPD understood by property and whether copyrights fell within it. It then discusses what enemy states, enemy nationals and enemy copyrights are. The EPD and the Decree on the Dissolution of Traitorous Organisations also contained rules on the property of traitors and traitorous organisations; those rules are addressed here as well. Finally, this section deals with the legal basis for the transfer of ownership to the State.

The definition of property

Property was described in article 1 of the EPD as:

‘all rights and powers under the law of property in the broadest sense which may form constituent parts of property, including:

a. all movable and immovable goods and other things, including concessions, trade secrets and trade names;

b. all rights and claims to or connected with the movable and immovable goods and things referred to under (a);

c. all rights and claims under the law of obligations which either are situated within the Kingdom, belong to the legal sphere of the Kingdom or can be enforced within the Kingdom, or, irrespective of where they are situated or where they can be enforced, belong to Netherlanders, Netherlands nationals or persons who have their domicile or residence within the Kingdom or are present there, or, in the case of legal persons, which have been incorporated or exist under the law of the Kingdom, whose registered office, place of establishment or head office is situated, or whose actual business or principal undertaking is established, within the Kingdom;

[d.] all title deeds, private and notarial instruments, evidentiary documents, records, books and papers relating to or connected with the goods, things, rights and claims referred to under (a), (b) and (c).’

According to the Explanatory Notes to the EPD, the concept of property was to be understood as: ’everything that can be the object of property rights, in so far as it is situated on Netherlands territory (such as movable and immovable goods) or belongs to the Netherlands legal sphere (such as patents, copyrights, claims whose debtor is resident in the Netherlands)’. Property therefore also included copyrights.

The concept of property was given an extraterritorial extension by bringing foreign assets of Netherlanders and Netherlands nationals, as well as of enemy nationals established in the Netherlands, within the scope of the EPD. The government did appreciate, however, that any exercise of acts of administration or disposal in respect of foreign property might run into difficulties abroad. The Explanatory Notes to the EPD accordingly stated that the Administration Institute ‘may seek to enforce its rights abroad, whether independently or with the cooperation of the person placed under administration’.

Enemy states and enemy nationals

Article 3 of the EPD speaks of the property of enemy states and of enemy nationals. The enemy states were Germany, Italy and Japan. Under the EPD, other states could also be treated as enemy states for the purposes of the decree, but in 1946 no other states had been designated as such.

A distinction must be drawn between enemy nationals who are natural persons and those which are legal persons. Enemy nationals were, according to the decree, (among others) natural persons who after 10 May 1940 were, or had for some time been, nationals of an enemy state, that is to say Germany, Italy or Japan. Under the EPD, interested parties could ask the Administration Institute to issue a declaration that they were not an enemy national, with a right of appeal to the Council for the Restoration of Legal Relations. The Administration Institute did not consider it sufficient for someone to show that they had fled Germany before 10 May 1940: they had to show that they had lost German nationality before 10 May 1940. Loss of enemy nationality after 10 May 1940 had no effect on the applicability of the EPD.

In implementing the EPD, the question arose whether Austrians too were enemy nationals. The Council for the Restoration of Legal Relations decided in 1946 that they were. The question whether Hungarians were enemy nationals arose in connection with music royalties owed for performances of the work of Hungarian composers. The decision of the Administration Institute or of the Council could not, however, be traced in the archives.

The second important group of enemy nationals were legal persons. Legal persons were defined in the EPD as: ‘partnerships and companies, associations, foundations, funds and private-law institutions, in the broadest sense, even if legal personality has not been conferred on them by other statutory measures or has expressly been withheld from them; a branch or sub-office established in the Kingdom of a legal person or undertaking not established in the Kingdom shall likewise be regarded as a legal person.’ And, so as to miss nothing, the Administration Institute could also determine that ‘another private-law body, or an undertaking belonging to a single person, or a part thereof, is to be regarded as a legal person for the purposes of this decree or part thereof.’

Legal persons were regarded as enemy nationals if they:

‘a. have been incorporated or exist under, or are governed by, the law of an enemy state,

b. have their registered office, place of establishment or head office situated, or at any time after the tenth of May 1940 situated, in enemy territory, or

c. have their actual business or principal undertaking established, or at any time after the tenth of May 1940 established, in enemy territory.’

Enemy copyrights

The copyrights of enemy states and enemy nationals passed to the State under the EPD. Enemy copyrights are to be understood as the exploitation rights under copyright that could be exercised in the Netherlands by enemy states and enemy nationals.

There was, incidentally, no immediate consensus on this. In mid-1945, for instance, the music retailer Ars Nova in Goes asked the Dutch authorities for permission to infringe copyrights belonging to Germans. The Administration Institute had not yet been established, and the Military Commissioner for the Restoration of Legal Relations replied to the request. According to the Military Commissioner, all property rights of enemies, including copyrights, had indeed passed to the State, but subject to the restriction, he said, that this related only to property in the Netherlands, that is to say within the legal sphere of the Kingdom: copyrights of Germans resident in Germany were not property in the Netherlands and had therefore not passed to the State. That view was corrected later in 1945 by the Administration Institute, established in August of that year: copyrights that could be enforced in the Netherlands formed part of enemy property. This view accorded with the (then still unpublished) Explanatory Notes to the EPD.

Related to this, a question of principle subsequently arose as to whether the copyrights themselves had passed to the State, or only the monetary claims that the copyright holder could enforce in the Netherlands. The Foundation for the Administration of Enemy Patents and Trade Marks, which had been asked to advise on enemy copyrights, took the position in 1947 that the copyright itself had passed to the State. According to the Foundation, copyright was severable and independent country by country: copyrights that could be enforced in this country were therefore a separate asset situated here which had passed to the State. The Foundation also consulted the eminent jurist H.L. de Beaufort, who endorsed its position, referring to the Dutch Supreme Court’s 1936 judgment in Das blaue Licht II.

On that basis it has been accepted among lawyers, to this day, that the State owns the (part of the) copyright that can be enforced within the Netherlands in the original German version of Mein Kampf, written by Hitler as an enemy national. Equally on the basis of the EPD, it is sometimes argued that the copyright in the Dutch translation Mijn Kamp, published in 1939 by the publishing house De Amsterdamsche Keurkamer, which was (co-)owned by the allegedly enemy national George Kettmann, would have passed to the State. His publishing house is said to have been assigned the copyright in the translation in 1943 by the translator, the NSB member Steven Barends.

Traitors and traitorous organisations

Article 6 of the EPD further imposed on certain persons (hereinafter, following Van der Grinten, called traitors) the duty to declare their property to the Administration Institute. Traitors were those who joined the NSB during the occupation and those who remained members of the NSB after 1 July 1942, as well as persons deprived of their liberty on account of conviction for, or suspicion of, an offence named in the Extraordinary Criminal Law Decree, or on the basis of the Decree on the Special State of Siege or the Tribunals Decree. The Administration Institute could treat other national-socialist or fascist organisations in the same way as the NSB, and did so for a number of organisations, such as the W.A. and the Germanic S.S. The property of traitors did not pass to the State but was placed under the administration of the Administration Institute by operation of law.

A duty of declaration also existed in respect of the property of certain specified legal persons, including those in which enemy states, enemy nationals or traitors had substantial interests. Specific traitorous organisations were subject to their own regime, the aforementioned Decree on the Dissolution of Traitorous Organisations (hereinafter: the DDTO). That decree applied both to the NSB and to organisations related to it and other national-socialist and fascist organisations; the list attached to the DDTO named 41 organisations to which the decree applied. Under the DDTO all these organisations were dissolved and their property passed to the Dutch State. Unlike the EPD, the DDTO was not accompanied by published explanatory notes. Nevertheless, it may be assumed that the concept of property in the DDTO has the same meaning and scope as the concept of property in the EPD, so that it also covers the copyrights of these traitorous organisations.

Traitors’ copyrights
Traitors’ copyrights are the copyrights of traitors (private individuals) which were placed under administration under article 6 of the EPD, and the copyrights of traitorous organisations which passed to the State under article 3 of the DDTO. This includes any employer’s copyright that the NSB or, for example, the national-socialist publishing house Nenasu could assert in publications by employees, and/or the copyright they had acquired by assignment from authors. Employer’s copyright as a rule lasts until 70 years after publication, so that works created in 1945 by employees of traitorous organisations (and not bearing their names) entered the public domain on 1 January 2016. Incidentally, the copyright in Mein Kampf also expired on that same date, since Hitler committed suicide in Berlin on 30 April 1945.

Legal basis of the transfer of ownership

As described above, the property of enemy nationals and traitorous organisations passed to the State, while the property of traitors was placed under administration. This section deals only with the transfer of ownership of enemy property. There has been much debate about the legal basis of that transfer of ownership to the State.

Under article 3 of the EPD, enemy property was ‘appropriated’. This transfer of ownership was conceived as a transfer by operation of law. The Explanatory Notes spoke of appropriation and expropriation as synonyms, and according to the Notes these terms mean that full ownership passes to the State. In the Explanatory Notes the State was at pains to observe that this transfer of ownership is not to be equated with confiscation, that is to say expropriation without compensation. Instead, the appropriation is, according to the Notes, ‘of a conservatory nature’. The appropriation would take on a confiscatory character, the Notes continued, only if neither the armistice terms nor the peace treaties made provision imposing on the enemy states the obligation to compensate their expropriated nationals for the loss suffered by them as a result of the expropriation. In short, the enemy states themselves would have to see to the compensation of their nationals expropriated by the Dutch State. Article 3(3) of the EPD accordingly provided: ‘The destination of the property thus accruing to the State shall be further regulated by statute, having regard to the provisions to be included in this respect in the armistice terms or peace treaties.’ This expresses, according to the Notes, that the transfer of ownership is provisionally not confiscatory and that any confiscation will take place in accordance with international law.

The government’s reason for using the term ‘appropriation of a conservatory nature’ and for emphasising that this was not expropriation without compensation lay in the fact that expropriation of citizens without compensation was generally regarded as contrary to international law. The Netherlands also appears to be the only Allied country that proceeded to appropriation instead of placing property under administration. Whatever may be said of the international-law aspects, the Dutch Supreme Court held in 1955 that article 3 of the EPD concerned a transfer of ownership under civil law.

A remarkable view of article 3 of the EPD was, moreover, taken by the Judicial Division of the Council for the Restoration of Legal Relations in its (interim) judgment of 10 April 1951 in a case brought against the Administration Institute by Lilly Schimmerling-Meyer concerning the copyright in the film Bel-Ami by the Austrian film-maker Willy Forst. The Division held that if the copyright was, at the time of the entry into force of the EPD, in the hands of the author (and had remained in his hands until any assignment to a non-enemy national), that copyright would not have passed to the State under article 3 of the EPD, because of the provisions of the final paragraph of article 2 of the Copyright Act and article 21 of the Bankruptcy Act. From those provisions the Division inferred that such copyright is not susceptible of attachment and is kept outside a bankruptcy. In this case the Division admitted the widow Meyer to prove that the copyright had remained in Willy Forst’s hands. She ultimately refrained from adducing that proof.

In the light of the foregoing, the Division’s reasoning is remarkable: the EPD did not seek to levy attachment on enemy property but appropriated it. Had the Division’s reasoning been correct, the Administration Institute would not only have had the task, for each individual work, of ascertaining whether the right was still in the hands of the original author and had remained there until assignment to a non-enemy national, but the rationale of the EPD would also have been defeated.

Exploitation by the Administration Institute

The property of enemy states and enemy nationals which had passed into the ownership of the State was administered on the State’s behalf, under article 10 of the EPD, by the (repeatedly mentioned) Administration Institute. The same applied to the property of traitors and of traitorous organisations such as the NSB.

The Administration Institute formed part of the Council for the Restoration of Legal Relations. There is some legal ambiguity here, since the Decree on the Restoration of Legal Relations speaks of the Administration Division of the Council, which is at the same time the Administration Institute referred to in the EPD, whereas the EPD speaks of the Administration Institute as a part of the Administration Division of the Council. The Administration Institute was a public-law legal person. It began its work in 1945 and was dissolved in 1967.

The Administration Institute had very wide powers. It took possession of property, kept and administered it, exercised the rights attached to it, and could also dispose of, encumber and liquidate that property. There was only one restriction: the sale of goods with a value estimated by the Administration Institute at more than ƒ 10,000 (guilders) had to take place at public auction. The Administration Institute could also shut down and close businesses. Under article 35 of the EPD, the Administration Institute could call on the assistance of controllers, administrators or liquidators. As a rule it appointed a separate administrator for each business and for each (immovable) asset. For certain assets a special form of administration was established. There was, for instance, a separate administrator for art (the Netherlands Art Property Foundation), for patents and trade marks (the Foundation for the Administration of Enemy Patents and Trade Marks), and, for example, for pleasure craft (the Pleasure Craft Foundation).

The administration of enemy copyrights was entrusted to a separate enemy copyrights department, initially headed by E.A.J.A.M. van Spaendonck, a member of the board of the Administration Institute. In October 1947 the Amsterdam lawyer H.A. Keuls and the The Hague lawyer L. Oppenheimer were appointed ‘administrators of enemy copyrights’. Keuls held that position until 1 June 1956, and Oppenheimer laid down his duties on 3 May 1957. Presumably the activities of the enemy copyrights department came to an end at that point as well.

Interestingly, the archive of the Administration Institute at the National Archives shows that the ‘administrators of enemy copyrights’ also granted licences, among other things for translations, performances of musical works and film screenings. They also collected, for example, the Buma monies relating to enemy copyrights.

It is hard to imagine that the enemy copyrights that were appropriated were assets of any economic significance in the years after the war. A memorandum from the Foundation for the Administration of Enemy Patents and Trade Marks to the Administration Institute, prepared for a meeting on 26 February 1947, supports that doubt. The memorandum discusses the state of affairs regarding enemy copyrights and the desirability or necessity of establishing a separate administration for them: ‘It should also be borne in mind that in the field of copyright a part of the enemy property will have lost its value since the liberation, [now that] the works of art to which those rights relate are sometimes no longer appreciated by the public.’

In reality, however, matters turned out differently. The expropriation covered not only scientific works, technical treatises and, for example, the German-language instruction manuals for Siemens equipment, but also the great classical German and Italian musical works, operas and dramatic works. Nor was it only a matter of rights German, Austrian, Italian or Japanese in origin; rights in works by English or American authors could fall within it too. Vyvyan Holland (the son of Oscar Wilde), for instance, had assigned the film rights in two of his father’s works, A Woman of No Importance and An Ideal Husband, in 1935 to the German film companies Terra Film A.G. and Majestic Film GmbH respectively. Those rights passed to the Dutch State in so far as they concerned the right to show these films within the Kingdom. The State duly managed to obtain £100 apiece for the right to screen these two films in the Netherlands in 1947.

In the period from 1 October 1947 to 31 December 1949, the proceeds from enemy copyrights amounted to ƒ 158,250.86 in total, of which only ƒ 258.34 had come from traitors’ copyrights (the work of traitors and traitorous organisations was clearly less in demand). The proceeds from enemy films for 1948 amounted to ƒ 20,022.47. The Buma music royalties were the most important source of income: from ƒ 28,599.45 in 1947 to ƒ 104,791.58 in 1953; in total, the combined Buma and Stemra proceeds from German copyrights over the years 1943 to 1954 came to the considerable sum of ƒ 680,456.17.

De-enemisation

The term ‘de-enemisation’ means that a particular person or group of persons was no longer regarded, or was never regarded, as enemy nationals. On request, the Administration Institute could declare that the provisions of the EPD were not, or no longer, applicable to the person or persons concerned. The legal consequence was that the administration of their property ended by operation of law and that this property, or whatever had replaced it, returned to them. In practice, the effect of de-enemisation was that the property was returned as at the date of de-enemisation, and if it had already been disposed of by then, the person concerned was entitled to the proceeds it had realised.

A distinction must be drawn between individual and collective de-enemisation. Under the individual procedure, an individual (or indeed a group of persons) could submit a request for de-enemisation to the Administration Institute under article 37 of the EPD. An appeal against the decision lay to the Judicial Division of the Council for the Restoration of Legal Relations. Only in 1948 were guidelines adopted setting out how it was to be assessed whether someone qualified for de-enemisation. At the very least it had to appear that the person had actually shown themselves loyal to the Allied cause. It was also assumed that an applicant had to have demonstrated a ‘good Netherlands disposition’.

Collective de-enemisation refers to the procedure by which persons or assets were ‘de-enemised’ collectively by statute, ministerial order or decision of the Administration Institute. As regards the collective de-enemisation of enemy copyrights, the Italian and the German copyrights are addressed here.

Italian copyrights

The collective de-enemisation of Italian copyrights was governed by the Act of 21 December 1946 and the Peace Treaty between Italy and the Allied countries (including the Netherlands) of 10 February 1947. Under the Act of 21 December 1946, the EPD remained applicable only to Italian property that had passed to the State before 26 November 1945. Italy and Italian nationals were no longer regarded as enemies.

Under article 79(1) of the Peace Treaty with Italy, the Netherlands was entitled to confiscate property rights of Italian nationals which were situated on Netherlands territory at the time of the entry into force of the treaty. Article 79(6), however, exempts certain assets from this, including rights of literary and artistic property.

Those entitled to (the proceeds of) these Italian copyrights took the position that all Italian copyrights had been de-enemised under the Peace Treaty, in the sense that they had never formed part of enemy property. They accordingly claimed payment of all monies collected by the Administration Institute in that respect. The Administration Institute took a more nuanced view. It distinguished between proceeds that had become due before and after the EPD became binding. It regarded proceeds due before the EPD became binding as separate assets (namely independent claims) which had to be viewed separately from the copyright that passed to the State when the EPD became binding. The Administration Institute relied on article 557 of the Civil Code, ‘according to which fruits already due are no longer copyright and are therefore not covered by the exemption of copyrights’. The Administration Institute’s position was contested by the Italian company G. Ricordi & C. of Milan. Unfortunately, only the Italian company’s application and the Administration Institute’s statement of defence were found in the archive, not the decision itself.

German copyrights

The de-enemisation of German copyrights was governed by the Destination Act and by two decrees: the Decree releasing legal relations with Germany in respect of copyrights, issued by the Administration Institute on 28 July 1949 (hereinafter: the 1949 Decree), and the Decree on the restitution of enemy copyrights of 25 June/10 August 1956 (hereinafter: the 1956 Decree).

The 1949 Decree provided, in respect of copyrights that arose after 24 January 1946 and the rights flowing from or connected with them belonging, in short, to German nationals and legal persons as referred to in article 1 of the EPD, for ’exemption from the provisions laid down by or pursuant to the Enemy Property Decree’. The 1949 Decree also gave the German nationals concerned general permission to perform legal acts prohibited under the EPD in respect of the copyrights in question. The 1949 Decree further provided that it did not affect acts of administration by the Administration Institute between 24 January 1946 and the date of the decree.

The background to the 1949 Decree was entirely economic. Trade with Germany was, as ever, an important engine of the Dutch economy. That trade had to be revived as soon as possible. This appears strikingly from an exchange of letters between the Administration Institute and De Nederlandsche Bank which preceded the 1949 Decree. On 19 July 1948 De Nederlandsche Bank (foreign-exchange permits office) wrote to the Administration Institute: ‘(..) that your institution is said to take the view that copyright fees accruing to German writers and publishers under agreements concluded after May 1945 accrue to the Netherlands State. We are happy to accept that this view may be legally correct; we feel bound to point out, however, that this view is at present contrary to the present interests of our country.’ The bank continued: ‘A large part of the economic difficulties with which our country is contending is, as may be assumed to be known, caused by the defective manner in which we have to trade with Germany, and vigorous efforts are being made to revive trade with Germany. It seems to us that German authors, just as much as traders, ought to be able to receive their remuneration.’

The Administration Institute then made preparations for the issue of the 1949 Decree, providing for a partial release. On 21 February 1949, however, De Nederlandsche Bank wrote again to the board of the Administration Institute, in response to the draft decree sent to the bank. The bank argued forcefully for a full release and wrote: ‘The arrangement you propose does not, in our view, offer a solution. We therefore feel bound to urge you to promulgate the order, amended in accordance with our proposal, as soon as possible. This matter has remained unregulated for far too long, so that, particularly of late, very great economic value has been lost to our country in favour of other co-signatories of the Paris agreement, who have evidently managed to bring about a satisfactory solution to this problem more quickly.’

The Administration Institute did not, however, bow to De Nederlandsche Bank and, in the 1949 Decree, provided only for a partial release, namely in respect of works created by Germans after 24 January 1946. The pressure nevertheless increased. A few months after the promulgation of the 1949 Decree, Buma approached De Nederlandsche Bank with a letter explaining at length what the situation in Belgium was and why, despite the 1949 Decree, trade was still being lost to Belgium (more on which below).

Under the Destination Act, Germany and German nationals were no longer regarded as enemies with effect from 26 July 1951. The EPD nevertheless remained fully in force in respect of property that had passed into the ownership of the State before 26 July 1951. The Administration Institute accordingly continued to refuse to remit monies to Germany in respect of copyrights that had passed to the Dutch State before 26 July 1951. Contrary to its own 1949 Decree, the Administration Institute also refused to pay the German collecting society GEMA any Buma monies in respect of German musical works created after 24 January 1946, on the ground, it said, that GEMA was failing, contrary to the Allied regulations, to pass on to Dutch authors what they were entitled to.

GEMA, however, refused to remit monies to the Netherlands as long as the Administration Institute did not pay out the German music royalties. At the end of 1954 GEMA was accordingly holding DM 256,569.12 in monies intended for Dutch authors, besides a considerable sum in Reichsmarks and East German marks. The matter escalated when the Administration Institute refused GEMA’s request to pay out an amount of ƒ 3,058.47 due for performances in the Netherlands of the song Pack die Badehose ein (Dutch version: Naar de speeltuin), which had been written after 24 January 1946. The German Federal Ministry of Economics no longer gave permission for royalties to be paid to the Netherlands absent reciprocity, and GEMA announced that it would proceed to set-off and use the Dutch royalties in Germany to pay German authors the Dutch royalties owed to them.

But the matter had further repercussions. A memorandum names five examples: the Printex music printing works had previously had large orders from Germany, but the German publishers stood in solidarity with the German composers and refused to place further orders; the German music publisher Hohner terminated a cooperation agreement with the Dutch company Basart N.V.; the Internationale Muziekuitgeverij De Kruyff, active mainly on the German market, was threatened with ruin because no copyright monies were coming in from Germany any more; and the Donemus Foundation approached the Minister of Education, Arts and Sciences to exert influence to resolve the matter: no German publisher proved willing to enter into a business relationship with a Dutch institution as long as the copyright question remained unsettled. It was the Belgian music publishers above all who profited from this.

The 1956 Decree: restitution of enemy copyrights

The economic pressure grew ever greater, as the music-copyright affair shows, and this was ultimately to lead, by way of the 1956 Decree, to the restitution of enemy copyrights whose restitution was not already covered by other arrangements. That decree implemented article 12 of the Destination Act, which provided that the Ministers of Justice and of Finance are jointly empowered to return property as referred to in the EPD to its former owners generally, if appropriate on conditions to be determined.

At an interdepartmental meeting on 26 November 1955, agreement was (at last) reached between the ministries concerned (Justice, Finance, Economic Affairs and Foreign Affairs): the enemy copyrights had to be returned. There was still debate about the reference date from which the resulting proceeds would be released (26 July 1951, the day of the de-enemisation of all Germans, or 1 January 1954). The Minister of Justice observed: ’the restitution of the copyrights themselves will, however, take effect from the day of the order, so that the validity of any legal acts performed by the N.B.I. [Netherlands Administration Institute] is not affected.’

That observation prompted a response from the Minister of Economic Affairs (J. Zijlstra): ‘Under the rules of civil law, the acquirer of a thing is not bound by agreements concluded by its predecessor in title in respect of that thing, unless it is an agreement intended to create a right in rem (…).’ The Minister of Justice (J.C. van Oven) replied by acknowledging that the Minister of Economic Affairs had raised ‘a difficult question’ ’to which little attention has been paid so far’. He then indicated that, on restitution of enemy copyrights, provision had to be made for cases in which the Administration Institute had already granted rights to third parties. That was done in the 1956 Decree by means of a chain clause, obliging each successive acquirer to pass the same obligation on.

Since it is little or not at all known but of great importance, this Decree on the restitution of enemy copyrights of 25 June/10 August 1956 is reproduced here in full:

‘The Ministers of Justice and of Finance,

Considering that grounds have been found to return, in the general interest and on the conditions set out below, enemy copyrights, as well as the proceeds of enemy copyrights in so far as the right to those proceeds arose after 26 July 1951;

Having regard to article 12 of the Act of 20 July 1951 (Stb. 311),

Have decided:

1. With effect from today, the copyrights and the rights flowing from or connected with them which have passed to the State under article 3 of the Enemy Property Decree and whose restitution is not already covered by other arrangements are returned to the former right holders in the state in which they find themselves today, on the understanding that, in cases in which permission has been granted by or on behalf of the Netherlands Administration Institute to third parties to perform acts which may not be performed without the consent of the copyright holder, the aforesaid restitution shall take place only on the condition that the former right holder undertakes, by a declaration to be given to the Administration Institute, vis-à-vis those third parties to honour the permissions given by or on behalf of the Administration Institute, and, in the event of assignment by him of the copyright, to oblige his successors in title both to honour the permissions given by the Administration Institute and, on further assignment, to impose the same obligations on their successors.

2. The proceeds of the rights referred to under 1, in so far as the right to those proceeds arose after 26 July 1951, shall be returned to the former right holders after deduction of the administration costs incurred in respect of them.

3. The assessment of who is to be regarded as the former holder of a copyright for the purposes of this order rests exclusively with the Netherlands Administration Institute.

The Hague, 25 June/10 August 1956.

The Minister of Justice, J.C. van Oven.

The Minister of Finance, Van de Kieft.’

Conclusion

At a certain point, enemies were no longer enemies. Property appropriated by the State after the war was as a rule not restored: it served to compensate war damage. There is at least one exception to that principle: enemy copyrights were returned, by way of the 1956 Decree. That decree was based on purely economic grounds.

On the basis of the 1956 Decree, the copyrights in Mein Kampf that can be enforced in the Netherlands therefore do not (any longer) belong to the Dutch State.

Copyrights that accrued to the traitorous organisations to which the DDTO applies very probably do still rest with the State. The reason is that, under its article 1, the 1956 Decree relates exclusively to the copyrights that passed to the State under article 3 of the Enemy Property Decree. Thus the copyrights in the NSB(-related) newspapers that the National Library has put online accrue to the Dutch State in so far as those newspapers were published by organisations as referred to in the DDTO and in so far as those organisations themselves held copyright in the contents of the newspapers.

This article has not gone into detail on (the winding up of) the administration of traitors’ property belonging to private individuals, which under the EPD was not appropriated but was placed under the administration of the Administration Institute by operation of law. It may be that this ultimately passed to the State, since the property of traitors could be forfeited as part of a sentence imposed, but it is equally possible that it was ultimately returned. That would have to be checked case by case.

Nor has the question of who is entitled to the copyright in the 1939 Dutch translation of Mein Kampf been definitively answered. The complicated publishing history and the vicissitudes of the publishing house involved contribute to this. The author of this contribution hopes to return to the subject in due course.