Joseph Goebbels acted as the minister of propaganda to Adolf Hitler during the German Nazi regime. The biography outlines that his propaganda prowess supported Hitler’s power, prolonged the Second World War, and fuelled hate and mistrust towards Jewish individuals. From , Goebbels meticulously recorded his strategic plans for the Nazi regime in his diaries. Random House initially agreed to pay a royalty fee for their use but later recanted, arguing it had to paying a war criminal’s estate.

Random House presents two arguments for its position, namely that (1) the claim is immoral because the estate wants to benefit financially from Goebbels's work, and that (2) the government ought to own the copyright to historically controversial works. The author of the , Peter Longerich, extensively quotes from Goebbels’s diaries and infers about Goebbels's personality traits from the their contents. Longerich states in the book that the diaries are “the basis of [the] biography and one of the chief sources for histories of the Third Reich”. However, they are copyright protected until the end of 2015, and claim to be owned by , daughter of Hitler’s former minister of economics.

Random House explains that the diaries should be exempt from copyright protection due to their lack of morality. In most countries copyright is content neutral. This means that copyright protection persists irrespective of the work's quality or morality. For example, section 5 of the Canadian Copyright Act states that copyright subsists in [Emphasis added]. While this supports freedom of expression, it also protects material that some may regard as immoral. Certain countries indeed consider morality and public decency when determining whether a work is copyright protected. For example, until last year pornography was unprotected in Taiwan due to its indecent nature. Recently, their IP court  that some types of offshore pornographic videos may be copyright protected. Therefore, morality may influence whether a work is copyright protected in some countries.

Furthermore, Longerich expressed that vital historical documents . The diaries are important because they describe the beginning, success and eventual demise of the Nazi regime. Goebbels recorded and drafted many of his propaganda ideas within these documents, which present an invaluable insider perspective. Counsel for Random House also argues that Goebbels intended for the government to own the copyright, and challenges Schacht’s claim to the documents. Similarly, the copyright to Hitler’s ‘Mein Kampf’ . Dresen’s argument that the copyright should belong to the government has merit because it is unclear if and how Goebbels transferred his rights to Schacht’s family before his death. No contracts or known records that could indicate this transfer survived the war. And, it may be more appropriate for governments to own copyrights to historically controversial works, so that financial benefits can proceed to charitable causes.

Copyright law necessarily balances user rights with author rights. This bargain allows an author to share their ideas in exchange for economic rights. Subsequently, the author attains the right of ownership, and the right to exploit the work as an article of commerce. Therefore, although Random House maintains that it is immoral to financially benefit from this literature and that the government should own the copyright, it is unclear whether its two arguments will succeed.

Last month, the Munich Higher Regional Court ruled in favour of Schacht, stating the estate was owed royalties for the use of the diaries. However, Random House is appealing this decision because it strongly believes that nobody should benefit financially from the works of war criminals. It will be up to the German Supreme Court to decide whether morality has any influence on German copyright laws.

Gosia Piasecka is an IPilogue editor and a JD Candidate at Thompson Rivers University Faculty of Law.

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As is the case with many questions of legality, the typical answer to each of the above questions is: “it depends”. Section 5 of Canada’s (the “Act”) stipulates that copyright persists in “every original literary, dramatic, musical and artistic work”. Dramatic work is defined as “any piece of recitation, choreographic work or mime, the scenic arrangement or acting form”. Arguably, some sports moves could be characterized as a choreographic work. For example, although the World Wrestling Federation has not claimed copyright protection over its wrestling matches, a reported last year suggests that the shows are in fact choreographed.

In 1991, in the case of FWS Joint Sports Claimants v Canada (Copyright Board)��(“FWS Joint Sports”)��1], the Federal Court of Appeal had to decide whether a decision by the Copyright Board to deny copyright over a football play was valid. The FWS argued that copyright protection should persist, however, the Board was of the view that, unlike dance, a sporting event is for the most part a random series of events. The Federal Court of Appeal agreed with the Board. The Court stated that a mere spectacle is not sufficient to attract copyright protection because it is inconsistent with the concept of choreography: “what transpires on the field is usually not what is planned, but something that is totally unpredictable.” The Court elaborated by explaining that ballet choreography is copyrightable, stating that "[n]o one bets on the outcome of a performance of Swan Lake", as the choreography is set and the performance is highly predictable. In the same decision, the Court also held that playbooks or game plans could be protected by copyright. Essentially, the decision suggests that scripted moves are protected under the Act. However, in another interesting case, a U.S. court determined that the by yoga guru Bikram Choudhury were not copyrightable. These cases cause and ultimately raise the following question: What exactly amounts to ‘choreography’ under the Act?

Looking at the array of , it is apparent that some are more likely to attract copyright protection than others. Beach volleyball, wheelchair Rugby or water polo are unlikely to find protection from the Act even if a team's coaches and athletes meticulously scripted and recorded some of the main moves for the Games since the presence of direct opponents would inject significant unpredictability to matches. Copyrightability aside, this unpredictability is what makes sports so exciting, it keeps fans glued to the TV screen and live observers gripping the edge of their seats.

Other sports are more choreographed and give the athlete greater control over his or her moves. Arguably, equestrian and gymnastics involve more choreography than a scripted event like wrestling. Therefore, Canadian gymnast and equestrian  may technically protect their routine under the Act. However, aside from being a copyrightable subject matter, the work in question also has to be ‘original’. In Canada, to qualify as being ‘original’, the work must have been independently created by the author, who had to use some skills and judgment when executing the work, as set out in in . It is unlikely that Hugh Smith and Jessica Phoenix invented the moves in their routine. Rather, they likely borrowed and built on proven moves used by other athletes, who themselves borrowed from their predecessors, and so on.

Given the strict criteria a work has to meet to qualify as a copyrightable work under the Act, it is unlikely that any of the Games' athletes will try to classify their glorious sports moves as intellectual property at this juncture. Hopefully, in keeping with the Games' motto - 'United We Play', all Pan Am and Parapan Am battles will be fought on the fields, pools and tracks rather than in the court room.

Gosia Piasecka is an IPilogue Editor and a JD candidate at Thompson Rivers University Faculty of Law.

[1] 1991 CarswellNat 157, [1992] 1 F.C. 487.

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