Copyright - Protecting Authors' Embarrassing Secrets From Nosy Biographers Since 1911!*

[major_clanger]

Courtesy of la_marquise_de_ (who alas couldn't attend herself) I went last night to a discussion panel on Copyright vs Free Speech as relating to the literary estates of authors. Organised by English PEN and the Society of Authors, and held at the Guardian Newsroom near Farringdon, it sought to tackle the problems faced by biographers and historians seeking to quote from the works and papers of dead writers. (And you thought living ones were awkward enough!)

The panel - two biographers, a literary agent and a lawyer - certainly covered some interesting issues. It's basic copyright law that even if an author is dead, copyright of published works subsists for 70 years from death, but it's easy to forget that owing to peculiarities of the law, hitherto unpublished works can enjoy copyright even beyond that. And, of course, if you're seeking to publish extracts from letters, much of the correspondence may, even if published already, be from people who died less than 70 years ago, or are even still alive. One good point the legal panellist made was that in fact it was often not copyright law that came into play. If you legitimately own, say, a box of a famous author's papers, and you sign a contract with a biographer that gives access subject to your veto over the resulting biography, then that's enforceable under contract law, not copyright law, and questions of whether the material is copyright or not don't come into it.

One point of view that came across strongly was that literary executors will often have two strong agendas: to maximise income for the literary estate (that's their job, after all) and to protect the posthumous reputation of the author. Since you can't libel someone after death, executors are apparently often very wary of what is published about the author they represent the estate of, since if embarrassing allegations come out then there is little that can be done about them. (As was noted in the discussion that ensued, this isn't so much a legal issue as an ethical one for the biographer.) My suggestion that perhaps we should posthumously separate legal copyright (aimed at income) and moral rights (aimed at protecting the author's interests) wasn't popular; the agent objected to anything that might reduce posthumous income, whilst the lawyer felt that the courts would be very wary of interpreting moral rights in a way that might introduce posthumous libel liability by the back door.

Something else that came across strongly was that despite the growing interest in alternative publishing models in the sf community, the mainstream publishing industry is still firmly wedded to traditional copyright, with a senior representative of the Society of Authors describing it as the indispensable bedrock of creative writing. Talking to attendees afterwards, there was some disquiet amongst biographers about the length of copyright, but agents and executors were firmly of the view that long and firmly-enforced copyright was essential. Of course, they have something of an interest in saying that, but it was clear that organisations such as the SoA will take a lot of convincing to move away from conventional IP models.

Overall though a very interesting evening, especially with some of the anecdotes from the panel. It seems that some literary estates are very easy to deal with, but others are best described as 'having history', at best wanting extravagant fees for quotes that are arguably fair dealing, at at worst noting what biographers are interested in and then commissioning more pliant writers to produce a book instead. Oh, and I finally found out why the third author of The Holy Blood and the Holy Grail didn't join the Baigent and Leigh in their extraordinary lawsuit against Dan Brown; he'd sought separate legal advice from the lawyer panellist, and had very sensibly been told to keep well clear...!

(*Yes, copyright has been around since the early 18th century. But the 1911 Copyright Act was noted as the point from where it started to really make things awkward for posthumous biographers.)

Comments

[http://users.livejournal.com/la_marquise_de_/]

I'm sorry I had to miss it: it sounds interesting. You have to remember that the SoA has a huge constituency, many of whom are in fields for which a number of the recent non-traditional publishing routes would represent a major setback in simple financial terms and in career terms. Textbooks are the classic example. These are often very poorly paid for in the first place -- and some are written for 'love'. Working academics outside th sciences can face having their work discounted by current research assessment methods if they are not in paper formats. And so on. As thing stands, the likes of Mr Doctorow can do what they do *because they can afford to*. Many many writers cannot.

[ms-cataclysm.livejournal.com]

I can second this . I pulled out of a textbook I was co-writing because the "record" advance my publishers offered worked out at about 10p an hour . People expect internet content to be free but will pay £350 for a looseleaf .

[marypcb.livejournal.com]

and poetry - short enough to copy online in bulk and killing sales of anthologies.

[watervole.livejournal.com]

If Alice writes a letter to Bob, who owns the copyright - Alice or Bob?

I ask, because this may be relevant to a book I'm working on.

[major-clanger.livejournal.com]

Alice will, because she is the creator. Originality is needed, but not artistic merit, so even a dull missive would attract copyright.

Strictly speaking, Bob may not publish the letter without her permission, although in practice a complaint of copyright infringement would be limited to stopping publication (e.g. by taking it off a website). Damages would be minimal at best because for an ordinary letter there is no loss of revenue, as it would not be published for reward in the first place. Of course, if Alice later becomes famous or notable, this may change, hence the issues discussed last night. Equally though, that would make it more reasonable for Bob to claim 'fair dealing' if he published short extracts from the letter for purposes of criticism or research.

Normally, Alice's copyright will last until the end of the year 70 years after her death. However, if the letter was written before 1990 and has never been published before, and Alice herself died before 1990, it may be in copyright until (if I get this right, and the law is a bit obscure here) 2060. This is because of transitional measures to account for the way that until 1990 unpublished material had a permanent copyright. This is why hitherto unpublished letters of long-dead writers can still be in copyright today.

One other factor: above and beyond any copyright concerns, depending on the circumstances and content of the letter, Bob may be under a duty of confidentiality to Alice not to disclose its contents.

[timill]

But IIRC Bob owns the physical letter?

[major-clanger.livejournal.com]

Yes. Legally it's a gift of a bit of paper from Alice to Bob which Alice cannot rescind or subsequently impose conditions on.

That's a nice example of how one item can embody physical and intangible rights. One of the issues that came up last night is that whilst Lottery funding was used to purchase the Churchill Archive for the nation, this was only the actual archive itself; the family retains the IP rights! (And this caused one of the biographers on the panel no end of trouble.)

[watervole.livejournal.com]

In this case, Alice is famous. I have no reason to believe she would have objected to Bob publishing the letters - they don't contain anything detrimental to Alice. She died in 1991. The letters in question have never been published.

Bob might be okay publishing short extracts as these would cover the points he wishes. However, the letters are fairly short to begin with, so would two sentences from a letter that only runs to about six sentences be okay? (It would be a book, not a web site)

Bob is American, but Alice was British. I don't know if this affects anything.

[major-clanger.livejournal.com]

Hmmm, several potentially thorny issues there.

First question: who would be upset if Bob did publish? Copyright infringement of itself is a tort (a civil wrong), not a crime, so someone has to be unhappy enough with what Bob did to sue him. Copyright can be both assigned and inherited, so does Alice have either a literary executor or protective/greedy offspring?

Secondly, the 'how much is fair dealing' question is always hard to answer. Off the top of my head, a third of a letter, even a short one, is likely to be deemed to substantial if it ever did go to court, so I don't think Bob could use that as a defence.

Finally, if Bob is in the US then there are jurisdictional issues. Suing someone in another country for copyright infringement is always difficult. Alice's executor/heir could sue in an English court, but couldn't compel Bob to attend, and even if judgment in default was obtained it would be hard to enforce it. Or Bob could be sued in a US court, but there the law might be different (fair use law is different from English fair dealing law).

The key question really is: is anyone going to get upset enough over Alice's letters being published (complete or in extract) to go to the expense and difficulty of suing? And from that, is there scope for an amicable agreement first?

Is this a real as opposed to hypothetical situation, by the way? If the former, I'm obliged to say that my comments cannot be taken as formal legal advice, just my personal opinion.

[watervole.livejournal.com]

It's a real situation. While I don't have any reason to believe Alice's estate would object to publication, I've just written to Bob and advised him to contact them for permission to publish the letters.