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.

On the face of it, the extension of copyright term is no big deal. The trend of legislation from Queen Anne onwards has been to cede the author’s estate an ever larger slice of posthumous revenue. But, looked at closely, this apparent generosity takes away more than it gives. Over the last hundred years the royalty enjoyed by British writers during their lifetimes has shrunk from a typical 20 per cent or more to a measly 10 per cent. Since the vast majority of works do not last anything like a hundred years as marketable items, it would make more sense for authors to forego the unlikely benefits to distant heirs and remote legatees in favour of a bigger cut of bird-in-the-hand profits – say, a 20-year post-mortem term in return for a 12 per cent royalty norm during life. Failing that, writers might agitate for pre-publication advances closer to the Martin Amis mark, though I doubt that they’d get them.

On the face of it, a greater stress on ‘moral rights’ is not necessarily a bad thing. What, in practical terms, it means is that an author can still object to mistreatment of what remains ‘his’ work in perpetuity after transferring ownership to a publisher. Even when he has sold his property he can veto, or claim compensation, for such things as grossly inappropriate dust-jackets, and film, stage or advertising adaptations judged to be travesties. One of the thought-provoking aspects of this form of protection, as I understand it, is that third parties are able, under the provisions of moral ownership, to come to the rescue of dead authors. The Dickens Fellowship, for example, even if they condone a musical version of Oliver Twist, could move to prevent a National Front pantomime version of the same work. The Royal Shakespeare Company, were they so minded, could move to injunct Hamlet Cigars or Romeo and Juliet condoms.

There are troubling aspects to the 70-year-term extension and the strengthening of authors’ moral rights. That section of the population which buys classic reprints will have noticed that good editions of great works coincide with the end of copyright protection. Heinemann were very happy to churn out their collected D.H. Lawrence, and sub-lease the texts to Penguin for forty-odd years. Then, on the brink of those works entering the public domain, the public whose domain it is was informed by Michael Black of Cambridge University Press that the standard Lawrence texts were culpably imperfect. A new authorised edition was put in hand – and a new copyright thereby created. As I recall, the Lawrence estate’s agents, Laurence Pollinger, initially hoped that reprinters of the out-of-copyright ‘bad’ texts would emblazon them with a leper’s-clapper notice, declaring to the world their textual uncleanliness. (It adds savour to the Lawrence saga to note that – he and Frieda being childless – the profit from the CUP edition will revert to the wronged Professor Weekley’s offspring.) It is good to have editorially corrected texts of Lawrence and it was noble of CUP to invest millions in the project. But if Heinemann-Penguin-Pollinger could, with the protection of the law, have continued monopolising the market with their pre-existing and confessedly flawed Lawrence texts for another 20 years they would most certainly have done so. It was only the prospect of losing the goose that made them think about improving the eggs which had proved so golden for them over the years.

The same inertia is evident with the works of Woolf, Joyce, Hardy and Yeats. With much hoo-hah the world was informed in the late Eighties that the text of Ulysses was a disgrace, and a new perfected text would be introduced to coincide with the termination of copyright (this was the ill-fated Gabler edition). Macmillan would have been happy to feed the public an exclusive diet of their execrable ‘collected’ Yeats and Hardy volumes until kingdom came. Luckily the 50-year term came first, giving us a cornucopia of cleaned up and annotated editions. Ask what the 70-year amendment will mean, and the answer is another 20 years of imperfectly edited (or unedited) Orwell, Greene, Eliot, Wells and any other canonical author who died after 1925.

The proposed reform is particularly tantalising for scholars like Patrick Parrinder, who has been working for some years on a revised team-edition of H.G. Wells (died 1946, by old UK regulation due to enter the public domain in 1996; by new EU Directive, 2016). There is, Parrinder plausibly argues, a crying need for improved Wells texts, and for a diversity of such texts so that the best can prove themselves by competition – the process that one sees continually in Shakespeare studies. While not a matter of cultural life and death this is not trivial. The greatest critic of Lawrence this country has produced, F.R. Leavis, was obliged to base his reading on what we now understand were imperfect texts. If we think our national literature important enough to enshrine in a National Curriculum, priority should be given to presenting it in the best possible form sooner rather than later. Seventy years strikes me as too late.

The forthcoming 70-year extension will mean hard choices for publishers specialising in classic reprints. World’s Classics, for instance, have invested heavily in an annotated Ulysses and have an annotated Lawrence (the unclean texts) coming out under the general editorship of Stephen Gill. They have Woolf titles in their catalogue. Even their full range of Thomas Hardy novels will return to copyright protection for a couple of years. Although the legislation will not be retroactive (that is, publishers will not have to cough up for past sales) a large portion of the World’s Classics list, and probably its most attractive portion from the sales point of view, will be yanked back into private ownership. Just whose ownership the DTI has not worked out yet. Nor, apparently, is it clear what will happen to warehoused but still unsold stocks on the fateful day in July 1995. But publishers of these series will either have to pay a large surcharge for the privilege of keeping these titles in their lists (at a time when they are facing fierce competition from cheap reprinters like Wordsworth) or they will have to write off investments undertaken in good faith, when the law was different. And the reading public will, quite probably, lose a large number of classic works in annotated form.

It should be noted that even eve-of-public-domain ‘authorised’ editions – which lock up canonical works in further decades of copyright monopoly – have objectionable aspects. Acting in collaboration with the assigned publishers and literary agents, literary estates can inhibit access to or publication of manuscript and pre-publication materials, such as proof sheets. Unpublished literary remains enjoy perpetual protection. Effectively, this means that ‘the owners’ can keep rival editions out of the market or condemn them to scholarly superficiality. Literary agents, with their single-minded mission to maximise their clients’ income, have recently become adept in wielding the ‘permissions’ weapon as it applies to newly-copyrighted editions and biography. My guess is that anyone wanting to produce an edition of Lawrence using the manuscripts and pre-publication evidence in a different way from CUP would have insuperable obstacles put in their way by the estate.

The basic problem is clear enough. Authors’ rights and interests are ferociously guarded (and aggressively enlarged) by agents acting on behalf of writers’ estates and by the Society of Authors. Publishers’ interests are protected by the cartelised might of the Publishers’ Association. No one, least of all the politicians (who are more worried about threats to the British banger than to English literature), safeguards readers’ rights as they are enshrined in the concept of public domain. Any erosion of public domain is a serious matter. What is needed, in the short term, is a commando as fierce in the protection of public domain as the Ramblers’ Association is of public right of way. In the long term there should be a body as well organised as the Performing Rights Society, devoted to lobbying for the extension and pro-bono exploitation of public domain.

Although they rally even less support than those of the reading public, critics also have rights. Traditionally the critic’s privilege to use in-copyright material has been protected by the ‘fair-dealing’ convention. This, too, is being chipped away, particularly by Faber who, over the years, have been enlightened enough to publish and keep in print the works of many major and minor modern poets (for which they should be saluted). The cost of permissions which this firm levies is so high as to make low-sale critical monographs unviable: indeed, as far as one can make out, Faber do not recognise fair dealing as applicable to any quotation of poetry longer than a couple of words. In addition to being charged for at exorbitant rates (exorbitant to the academic pocket), permission can be denied to prospective books which the estate dislikes. Some Faber-published estates – those of Eliot, Joyce and Plath, for instance – have very pronounced dislikes. In the face of this intransigence publishers generally have become nervous about ‘fair dealing’ – a concept which has never been clearly defined or authoritatively tested in law. The rule of thumb is ‘400 words continuous, 600 words in all and less than a line of poetry’; but this can no longer be taken for granted. The new rule is, don’t quote unless you have to and then quote as little as you can get away with. This is inhibiting to free discussion and with some canonical authors ‘censorship’ would not be too strong a term. But a balance between the interests of readers and of estates could be achieved, without great injury to the copyright-holders, by a vigorous defence of ‘fair dealing’. CUP have studied the matter and have decided that, according to the vague legal definition of the term, fair-dealing allows ‘substantial’ reference. Apparently they intend to test this in 1995 by publishing controversial critical works which substantially (but ‘fairly’) quote in-copyright material for which permission will not be sought. ‘Explosions’ are predicted. It is a courageous policy, and the health of literary discussion in this country will hang on the outcome of CUP’s campaign.

Literary criticism has recently interested itself in copyright (a topic traditionally relegated to the outer territories of bibliography). On 16 December, the Centre for English Studies at the University of London sponsored a conference (presided over by Patrick Parrinder) entitled ‘Textual Monopolies: Authors, Publishers and European Copyright Law’. A mixture of publishers, academics, authors, lawyers, literary agents, students and lay-readers were gathered. Representatives of the DTI were apparently invited, but did not attend. The range of viewpoints on copyright expressed was probably unique. A surprising degree of consensus was nonetheless achieved and one felt by the end that there might well be a sensible way of balancing interests on this most contentious of topics, provided the discussion continues and the parties keep talking to each other in a civilised way.

A more populous, richly subsidised and homogeneous conference (sponsored by the Society for Critical Exchange – a body primarily devoted to the study of copyright), entitled ‘Intellectual Property and the Construction of Authorship’, was held at Case Western Reserve University, in April 1991. Two of the eighty speakers at the conference were Mark Rose and Susan Stewart. Out of their contributions have come two books which ponder the early evolution of literary copyright. Rose’s elegant and concise study pays close attention to landmark law cases in the 17th and 18th centuries, and aims to trace the emergence of copyright ‘not as a transcendent moral idea, but a specifically modern formation produced by printing technology, marketplace economics, and the classical liberal culture of possessive individualism’. Susan Stewart focuses on copyright and other strategies of ‘containment’ as they affect ‘specific cases of forgery, literary imposture, pornography, and graffiti’ – what she calls ‘crimes of writing’. A selection of the papers delivered at Case Western Reserve has been edited by Martha Woodmansee (a professor of English) and Peter Jaszi (a professor of law). We do not, I think, have a label for the kind of hybrid legal-literary-critical approach embodied in these three books, which combines history, legal casuistry and literary aesthetics. But it is clear that it will be one of the livelier areas of academic activity over the next few years.