Bracing for Impact Keynote Address Tells a Copyright Story Never Told: Art and Copyright in Ghettos and Concentration Camps

Bracing for Impact Keynote Address Tells a Copyright Story Never Told: Art and Copyright in Ghettos and Concentration Camps

Claire WortsmanClaire Wortsman is an IPilogue Senior Editor and a 3L JD Candidate at Osgoode Hall Law School.

Photo by Buda Photography

On November 9, IP Osgoode, Reichman University and Microsoft hosted the first in-person Bracing for Impact Conference since 2019. The conference focussed on “The Future of AI for Society.” While AI is full of exciting possibilities, real-world application and integration are relatively nascent. Implementing AI technology in society requires complex interdisciplinary engagement between engineers, social scientists, application area experts, policymakers, users, and impacted communities. At the conference, an esteemed lineup of speakers across disciplines discussed the forms that interdisciplinary collaboration could take and how AI can help shape a more just, equitable, healthy, and sustainable future.

The speakers at IP Osgoode’s Bracing for Impact Conference: The Future of AI for Society told many stories and pondered many questions. Most of these – how to balance the benefits of data collection with the drawbacks of ubiquitous surveillance, how data-informed legal practice can increase access to justice, how to leverage data in healthcare in an ethical way – are questions that come up often and are growing in popularity as Artificial Intelligence’s capabilities continue to expand. Yet the Keynote Address and Keynote Commentary at the Conference told a copyright story that has never been told. And while many speakers focussed on the future, in the Keynote Address and Commentary, Professor Lior Zemer and the Honourable Justice Marshall Rothstein turned to the past.

Professor Lior Zemer, Dean at the Harry Radzyner Law School at Reichman University, began his presentation with Artwork of the Compiègne Concentration Camp by Abraham Joseph Berline created in 1941. Dean Zemer explained that the image was of the camp’s watchtower and prison booth. Berline constructed it using egg shells from the scraps given to Jewish inmates as food and a wooden plate he found at the camp. In 1942, Berline was transferred to Auschwitz and murdered. In 2021, the drawing auctioned in Jerusalem for $8,000.

Berline was not the only individual who managed to create art under unimaginable circumstances. There was the Women Orchestra of Auschwitz, the Theater scene in the Vilna Ghetto, and many more. As a prisoner in Auschwitz, Dina Gottliebova Babbitt was forced to author portraits of prisoners. These paintings that saved her life are currently held in the Auschwitz-Birkenau Memorial and Museum in Poland, despite her pleas for their return: “They are definitely my own paintings; they belong to me, my soul is in them, and without these paintings, I wouldn’t be alive.”

Dean Zemer took the audience through many examples that raise emotionally and legally complex questions: Who is the owner – who can perform, play, reproduce, display, and communicate to the public – these works, or versions of them? Who is entitled to the right to complete uncompleted work such as the compositions of Czech Jewish composer Pavel Haas who died in Auschwitz in 1944? “Art is a form of testimony,” Dean Zemer explained, “when art is created under extreme circumstances, its unlimited message to the outer world is unparalleled to any other way of expressing the experiences in these circumstances.” This art is of paramount importance to institutions and museums striving to educate the public about the atrocities in the camps and ghettos. Yet using these works with no authorization from legitimate owners is both morally and legally questionable.

In September, Dean Zemer was visiting Warsaw, Poland and noticed a street exhibition in the Old City that included drawings made by children in concentration camps. Some visitors mocked the drawings, and some of the drawings were vandalized. After explaining the jarring experience, Dean Zemer posited that “Copyrighted expressions within the ghettos and concentration camps have no parallel example in human history. As such, these works deserve sui generis protection. The authenticity of these works makes them a closed category. Copyright law protects and should continue to protect communicative and dialogical spaces. Copyright laws should not stand between exposure to authenticity, but at the same time should not avoid dealing with illegal ownership claims.”

Dean Zemer explored the copyright principles of Fair Use, Orphan Works, and Perpetual Rights. Fair Use, he explained, can help strike a balance: there is a public interest in having the fullest information available, but these works’ unique nature requires us to present them as is with no modifications or transformative messages. Most artwork created in ghettos and concentration camps is today, by default, Orphaned Work. Yet this art shares a common Jewish heritage, and the unique circumstance that led to the orphanhood of these works renders the Orphan Works doctrine insufficient. Similarly insufficient is the form of non-perpetual protection favoured by the Common Law – moral rights in Holocaust works should be granted perpetual protection, which requires special legislation.

Dean Zemer presented evocative images, sounds, and stories of the Holocaust. Dean Zemer, a third-generation descendent of Auschwitz survivors, closed his presentation with an image that evoked a different set of emotions. The image captured his 11-year-old son playing the oboe in the Pavel Haas Wind Quintet in the Israeli Conservatory: Dean Zemer’s “own little victory.”