The Great Copyright Disaster

John Sutherland

  • Authors and Owners: The Invention of Copyright by Mark Rose
    Harvard, 176 pp, £21.95, October 1993, ISBN 0 674 05308 7
  • Crimes of Writing: Problems in the Containment of Representation by Susan Stewart
    Duke, 353 pp, £15.95, November 1994, ISBN 0 8223 1545 9
  • The Construction of Authorship: Textual Appropriation in Law and Literature edited by Martha Woodmansee and Peter Jaszi
    Duke, 562 pp, £42.75, January 1994, ISBN 0 8223 1412 6

Momentous changes in copyright law, such as those of 1710, 1842, 1890 and 1911, are preceded by periods of turmoil and radical uncertainty about the rights and wrongs of intellectual property. We are in such a period now. The problem, in the short term, is how the British Government will implement the ‘harmonising’ of the latest EU regulations on copyright. The decision to accept Brussels’ instruction (EC Directive 93/98/EEC) was taken in October 1993. A consultation document has been issued by the Intellectual Property Policy Directorate in the DTI and a final decision is expected in July 1995. Ominously, as Eurosceptics will think, it looks inevitable that harmonisation will mean Britain and its European partners (a word which has become as double-edged as ‘harmony’) falling into step with Germany. Germany has a 70-year post-mortem rule, as opposed to 50 years in the UK, and a greater reverence for authors’ ‘moral rights’; whereas the Anglo-Saxon, Brito-American book trade has traditionally been petty bourgeois about the sale of literary property, assuming authors to surrender all claims when the rights are sold to the publisher. A principal justification for the longer term of protection in Germany is the interruption to booktrade activity caused by the Second World War. Mein Kampf, to be tasteless about it, was unsaleable for two decades after hostilities, thus robbing the author’s estate of the full value of its property. The European-wide extension next summer will mean that Mein Kampf – and its author’s speeches, which have a healthy sale in the audio market – will be protected beyond 1995 (when, by the old law, they would have entered the public domain in the UK and some other European countries) and will continue to remunerate Hitler’s heirs and assignees until 2015.

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