Bundesarchiv and the Public Domain

[Hunter12396]

I understand that the Bundesarchiv has the official position that they hold the copyright to their documents, and that to use their documents you must pay a licencing fee. That makes sense for documents more recent than World War II, which are copyrighten to the German government.

However, in most cases, documents, photos, blueprints, etc. from before 1945 should generally be in the public domain, yet it is my understanding the Bundesarchiv still charges licensing fees for these works. I was willing to accept this as the way things are, as for me to use a photo from BAMA, someone who works at the archive would have to make the scan and send it to me, and that scan would still belong to the archive. That is the way copyrighting of reproduction of public domain works work in the United States.

A person I know recently brought up this EU law from 2019 https://eur-lex.europa.eu/legal-content ... P2Contents
Specifically under Chapter 14 Article 14, it says that a reproduction (photograph, scan) of a public domain work is itself public domain. So regardless of who takes the picture of the document, it is public domain as long as the document itself is public domain.

On top of this, many of the Nazi era documents currently held by BAMA were returned to them by the United States, which already regarded them as public domain. Am I missing something or is it completely possible to use a pre-1946 photograph or blueprint from the Bundesarchiv in a book and to pay no licencing fees? It may go against the Archiv's rules, but they don't seem to have any legal leg to stand on.

[Mori]

Interesting findings about the 2019 EU law (thanks !).

About photographs falling in the public domain while in the US, the trick would be to make sure said photographs really made the trip. If you see the photograph on a microfilm held by NARA, that's it. But there ain't that many photographs on said microfilms (main exception: ID pictures found in the Personalakten).

Going further with your question, there is probably no other way but to search for court ruling, if any case ever made it to court.

[Hunter12396]

Going further with your question, there is probably no other way but to search for court ruling, if any case ever made it to court.

Every difficult question in copyright law seems to come back to 'we don't know because there's no ruling to use as precedence.' That means that either no one has tried it, or that people do it and no one has ever cared.

[andrek]

I see from your post that you are from the USA. Why do you care what germans want or expect?

There are thousands or maybe 10.000 pictures available for free on the www. Their origins are the German Bundesarchiv. It's easy to find those photos or documents. Almost nowhere I read an indication of the copyright.

On the other hand, the forum member Mike Yeager payed huge sums to the Bundesarchiv for color photos of KC holders and other stuff. It is said about $500,000. As far as i know he is from the USA. Maybe take his books, copy the pics and publish the pics under your name. Must be legal to my opinion. Ask him.

As far as i know, the Bundesarchiv never took legal actions against copyright thefts. Anyway, I never heard or read about it in the German press. It might be possible. Just try it out and if the archive takes action, what should happen, you are from the USA.

Your statement about "Public domain" is nonsense. Yes, we the germans lost the war. To my understanding the pictures and documents are the property of the German people and not the property of Italy or Austria, as part of the winning nations. Many photos and documents were confiscated or simply stalked by the winners. This does not mean that everything that has been created in the time between 1933 to 1948 is today the victor's victor and now belongs to someone from Vienna or Rome because it is public domain and the Federal Republic of Germany as the legal successor of the German Reich remains only the role of the observer.

[Jan-Hendrik]

Ask him

Impossible! He is dead!.

Jan-Hendrik

[Mori]

I see from your post that you are from the USA. Why do you care what germans want or expect?

Guy, there is no need to sound so agressive. Please behave.

[Mori]

Your statement about "Public domain" is nonsense. Yes, we the germans lost the war. To my understanding the pictures and documents are the property of the German people and not the property of Italy or Austria, as part of the winning nations. Many photos and documents were confiscated or simply stalked by the winners. This does not mean that everything that has been created in the time between 1933 to 1948 is today the victor's victor and now belongs to someone from Vienna or Rome because it is public domain and the Federal Republic of Germany as the legal successor of the German Reich remains only the role of the observer.

Actually, it's your reasoning which is hard to follow. Being "public domain" wouldn't mean documents belong to another country, just they don't belong to anyone and can be freely used by everyone.

Also, the hypothesis that said documents became "public domain" during the 20+ years when they were in warehouses in the US and the UK could very well have legal consequences if you assume that whatever is public can never become 'private' anymore.

[MLW]

These are questions that publishers often address. If something - image or document, etc. - comes from the Bundesarchiv, it must be assumed it is copyrighted. I know an author who lives in Germany and had his book published. After it was published, the Bundesarchiv sent him a letter demanding payment for his use of several photos in the book, even though he claimed the photos came from NARA, so he paid.

[Mori]

These are questions that publishers often address. If something - image or document, etc. - comes from the Bundesarchiv, it must be assumed it is copyrighted. I know an author who lives in Germany and had his book published. After it was published, the Bundesarchiv sent him a letter demanding payment for his use of several photos in the book, even though he claimed the photos came from NARA, so he paid.

It's kind of surprising BAMA wrote to the author instead of the publisher. Or did you mean the publisher?

It's also because that was a German-to-German thing. I would be way more complicated (and costly) for BAMA to go after a non-German publisher/author. We are talking about little money here, so the cost of the procedure can quickly rise above whatever fee BAMA claims (and recovery of procedure costs is country dependent, some countries like Germany make it almost automatic, while others like France require a court ruling specifically saying so).

[MLW]

I am not entirely certain of the circumstances, but if I recall correctly, the author self-published the book.

[steve248]

At the British National Archives they will reproduce digital copies of photos in their archival holdings.
I do not know how they do this from postal enquiries from people living outside the UK.
When I wanted a photo, in my naive period, I went to the photocopy counter and asked about getting a photo and repro costs for insertion in a book. The Repro Manager came along along asked what I wanted it for and likely book sales and basically thought of a number. In my case it was 20 English pounds. The problem arose when they sent me the digital image - my own digital copy using my own camera was much better. Nowadays I don't bother. I simply say copyright UK National Archives (I think it should saw Crown copyright) and give the reference. I am not "passing off" the image has mine.

[steve248]

Incidentally a Berlin friend told me this week, Bundesarchiv Berlin-Lichterfelde are taking reader reservations for July 2022 (next year).

[smetanin albert]

Berlin (and Freiburg) have been operating since April 1921.
The Potsdam Archive was closed again.
NARA opened on July 13 for the elite(perhaps it will work in the fall)

[steve248]

Berlin and Freiburg are not open to folk who just turn up; you need an appointment.
When bungling Boris finally sees the light by the rise in UK hospital admissions and rising death rates no doubt we will go back into lockdown before summer is out.