The Great Copyright Disaster
- 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.
Vol. 17 No. 2 · 26 January 1995
John Sutherland’s erudite article (LRB, 12 January) contained a minor legal solecism. An author’s moral rights exist only for so long as the copyright in a particular work exists, and an author’s estate would not therefore be able to lodge complaints in perpetuity concerning the treatment of a work.
Brown Cooper Solicitors,
Vol. 17 No. 3 · 9 February 1995
Professor John Sutherland’s scholarly review of copyright issues (LRB, 12 January)makes one want to go further. The right place to start is with the objective that copyright law is meant to achieve. The answer to that can only be that it is there to encourage creative work. Giving aid and comfort to publishers, inheritors, lawyers and others is surely secondary, and it is doubtful how badly it is wanted by authors. What authors want above all is an audience, and their wish for an audience coincides with the public’s right of access. This author would strongly prefer to have copyright expire when he died, in that that would make for better dissemination of his work. He would prefer not to assign some unidentified individual the right to suppress his work or to suppress improvements in his work for 50 or 70 years after his death.
Vol. 17 No. 4 · 23 February 1995
Professor Sutherland aims at a number of different targets in his recent article on copyright (LRB, 12 January). 1. Professor Sutherland complains about the extra 20 years’ income from the UK which Hitler’s heirs will receive by reason of the implementation of the European Directive extending the term of copyright protection. If this is an argument about the balance of trade, then shouldn’t we also bear in mind the extra 20 years’ income which British publishers and British authors’ heirs will receive from other member states? Perhaps he simply means to express disapproval at the notion of anyone profiting from Hitler’s writings. English courts have been willing from time to time to assume the role of censor of morals: by, for example, refusing to grant Murray an injunction to restrain infringement of Don Juan or, in more recent times, suggesting that Peter Wright’s publishers need not pay him royalties for Spycatcher – is this what Professor Sutherland has in mind?
2. He is mistaken to suggest that the extra 20-year post-mortem protection in Germany was introduced in order to compensate for the interruption to booktrade activity caused by the Second World War. In fact, when the draft of the Federal German Copyright Law of 1965 was originally submitted, it contained a proposed 20-year domaine public payant (i.e. a cultural levy to be used for Arts Council-like purposes), tacked onto the existing 50-year period. This was abandoned at the last minute in favour of an extension to the protection period. Three other European countries, Belgium, France and Italy, have extensions of various lengths to compensate authors for loss of revenue as a result of World War One (Belgium), World War Two (Italy) and World Wars One and Two (France).
3. He is also wrong about moral rights. The introduction of moral rights into British law was effected by the Copyright, Designs & Patents Act 1988 (‘CDPA’) and was necessitated not by any Euro-legislation but by the United Kingdom’s treaty obligations under successive versions of the Berne Convention, of which the United Kingdom was an original signatory in 1886. Moral rights made their first appearance in the Rome text of the Convention, which dates from 1928, so it cannot be claimed that we were precipitate. In their British guise, moral rights may be waived and may only be exercised by authors and, in the 50 years post mortem, by their heirs. CDPA specifically provides that such rights do not apply to works whose authors died before 1 August 1989, the commencement date of the Act. Professor Sutherland’s examples of the RSC getting injunctions against Hamlet Cigars or Romeo and Juliet condoms are fanciful in the present state of the law in the UK. But not on the other side of the Channel, where they order things differently. Danish copyright law has come to the aid of the authors of the New Testament to protect their moral right, which was thought likely to be infringed by a film script describing Jesus as having had a number of love affairs, and the French courts were ready to uphold the rights of Laclos in relation to the Vadim film of Les Liaisons dangerouses.
4. Professor Sutherland’s comment about authors’ royalties shrinking from 20 per cent to ‘a measly 10 per cent’ over the last hundred years skates very lightly over deep waters. Apart from royalty rates we would need to know the selling prices on which the royalties were being calculated and the average number of copies sold. Once that information available it would be possible to do some rough and ready calculations (disregarding the impact of taxation and differences in living standards) to produce comparative data. For interest I have undertaken a very rudimentary exercise. I have looked at the selling prices of an arbitary sample of hardcover novels, published at dates between 1946 and 1994. The first is Roy Fuller’s Savage Gold, published in 1946 at 8s 6d, and the last is the most recent Patrick O’Brian, published last year at £14.99. I have then calculated by reference to the Government’s retail price indices what the price of the Fuller novel would have been in 1994, assuming that the 1946 selling price had been inflated by no more than the increase in the indices. The answer is a selling price of under £9. Similarly, if you take Hughes’s Fox in the Attic, published in 1961 at 18s, its 1994 equivalent is just over £10. That suggests to me that Professor Sutherland’s declining royalty may have been compensated by a real increase in selling prices. The other compensatory fact I would propose is that there has been a very significant increase in the scale of activity in the paperback market.
5. It is incorrect to state that ‘unpublished literary remains enjoy perpetual protection.’ The CDPA abolished perpetual protection, which had been an unaltering feature of the copyright landscape for a period in excess of two hundred years. Apart from special provisions for pre-1988 works, there is no distinction, as the law now stands, between those works which an author publishes in his lifetime and his remains: both fall into the public domain 50 years post mortem. Of course, the difference is that near kin may hide literary remains from the world’s eyes, if they choose.
6. Professor Sutherland’s concern about the availability of good editions of canonical texts echoes an argument of Dr Johnson’s in support of an extension of the protection period to 50 years. Johnson wrote: ‘In fifty years almost every book begins to require notes either to explain forgotten allusions and obsolete words; or to subjoin those discoveries which have been made by the gradual advancement of knowledge; or to correct those mistakes which time may have discovered. Such Notes cannot be written to any useful purpose without the text, and the text will frequently be refused while it is any man’s property.’ It seems to me that a Heritage Edition of the best texts of the canon might command wide support and would be an eminently suitable project for the Millennium Commission to consider.
7. Finally, I entirely agree that the rights of users of copyright material need to be vigorously defended so that the proper balance can continue to be struck between, on the one hand, the interests of authors and other derivative rights owners (publishers, producers), who wish to protect the integrity of their creations and receive proper remuneration, and, on the other hand, the interests of society at large in having access to useful books, films, music and visual and plastic arts. The BBC, like any other broadcasting organisation committed to reporting and commenting on all aspects of British society, is bound to want to ensure that copyright legislation includes proper public footpaths as well as No Trespassing signs. One of the most recent cases reflecting the differences between a rights owner and a user about the definition and extent of ‘fair dealing’ arose in relation to a Channel 4 programme which ‘quoted’ extensively from the film A Clockwork Orange. Channel 4’s right to make such use, amounting to about 20 per cent of the duration of the programme and a rather smaller proportion of the original feature film, was upheld by the court.
Head of Copyright and Artists’ Rights, BBC, London W12
Vol. 17 No. 5 · 9 March 1995
If you combine Thomas Lynch’s observation (LRB, 22 December 1994) on how the dead feel about what happens to their remains – ‘only the living care’ – and John Sutherland’s comments on copyright (LRB, 12 January), you come to the conclusion that authors’ rights should cease at death. Neither the argument that copyright makes a profession of letters possible, nor the argument that it gives creators control over their creations, has any force when the creators are no longer there to be encouraged or outraged, (I guess one must have a clause to cover the rights of destitute widowers and orphans, but I would means-test it.) This limitation on copyright would make attempts to control the reputations of writers by their executors more difficult, but these efforts have so often been counterproductive that there is no reason to believe that the dead would rise up. It would also straighten out problems like those of the publishers and authors of books about modern painting who find themselves paying sums of up to three figures for the right to reproduce single illustrations by the great recently-dead; the concept of fair dealing is not easy to apply to pictures, and reproduction fees are now so high that short-run monographs may become too expensive to be worth publishing. The Design and Artists Copyright Society (DACS) are bringing criminal charges against the publishers Thames and Hudson for infringement of copyright in a book about Max Beckmann. If DACS loses the case it may make things easier, and in a decade or so we will doubtless have the archives of the world’s galleries available electronically (if expensively). Then artbooks will again be books for reading not looking. In the meantime the interests of readers, writers and publishers seem to coincide. We would all be better off if the principle was accepted that copyright is a barrier to the exchange of ideas which can be justified only in terms of directly supporting those who have ideas in the first place.
The prospect of a world in which literary and artistic creativity is hindered by the activity of copyright lawyers has come to haunt me in recent years, so I was pleased to read Professor Sutherland’s suggestion that an association for the defence of the public domain is needed. But Professor Sutherland does not show sufficiently just how feeble the argument is in the EC Directive, and the various prolegomena thereto, for the change that will add 20 years to the copyright term for literary works in the United Kingdom. This change is said to be needed to continue the intention in the Berne Convention that two generations of the descendants of an author should benefit from his copyright royalties, and the extra 20 years are to be added because people now live longer than they did when the 50-year postmortem term was set.
Although copyright is of great economic importance (on one recent estimate 5 per cent of UK GDP is dependent on copyright law), little is known about who is actually getting the benefit from that minute number of works which still generate royalties after the deaths of their authors, so little can be conjectured about the effect of extending the term of their good fortune. Contrast the certainty of the situation in 1839 when Wordsworth petitioned Parliament in favour of Sergeant Talfourd’s Bill. Wordsworth knew that, failing a change in the law, all his copyrights would end at his death. He argued that, as well as his natural wish to provide for his family, it was desirable that his descendants should control the printing of his works.
Professor Sutherland gives figures to show that while the historical trend has been to extend the copyright term, this has been matched by a decline in the royalty rate paid to British writers. But his figures do not tell us anything unless we know both what it is that these figures are a percentage of, publishers’ contracts not being uniform in the matter, and sales figures. If for no very good reason we are to get an extension of the copyright term, one important consequence is that the brief (1978-95) period in which the copyright term has been uniform in the UK and in the US is ended. One wonders what effect this will have on the availability in this country of American scholarly editions of English writers out of copyright in America 50 years after their deaths, but still with 20 years’ protection in the United Kingdom and the rest of the EC.
In the presentation of his case Professor Sutherland makes a number of errors about the current law: nearly all of the moral rights that we have in UK copyright law arrived with the 1988 Act. The new Directive makes no alteration to moral rights in UK law. And when he writes that ‘unpublished literary remains enjoy perpetual protection,’ it is true that they may be protected by the law of contract or of confidentiality, or by being hidden in a drawer or bank vault, but they do not enjoy perpetual copyright protection any more. Perpetual copyright for unpublished literary works was ended (except for works of unknown authorship) by the Act of 1988.
Vol. 17 No. 6 · 23 March 1995
David Lewisohn (Letters, 9 March) wonders what effect European copyright extension will have on the availability in this country of American scholarly editions of English writers out of copyright in America 50 years after their death, but still with 20 years’ protection in the United Kingdom. He should know that British, not merely American, scholarly editions of English writers are likely to be available in the United States but not in this country. Since European copyright extension attracted very influential behind-the-scenes support here (from literary estates and music-companies, among others) it would be useful to know whose interests this serves. However, at the time of writing, the answer to Mr Lewisohn’s question is still unclear. The Patent Office has yet to make known its proposals for the relevant legislation which will come into force this July.
Some consequences of ending copyright protection at the author’s death, as suggested by Peter Campbell (Letters, 9 March), will be felt when the author is still alive. For example: A. is a 72-year-old man who smokes 60 a day, drinks a pint of whisky before lunch and a pint of gin after dinner. He has had two heart attacks and carries a piece of shrapnel dangerously close to his left ventricle. He rides a motorbike at great speed and flies a light aircraft when sober. He feels as fit as a flea and looks forward to another ten years of dangerous living. He has a brilliant new novel to sell to his publisher. Under the new dispensation his editor consults the in-house medic. She declares that A. will, on the balance of probability, not live to the autumn season when his book would be published, and almost certainly not long enough to see the Booker Prize ceremony, or the paperback edition. He is likely to be out of copyright before his publisher makes any money out of him, and is therefore declared a non-viable author. In the event he lives to be 94 and his last three unpublished novels are brought out immediately after his death by Wordsworth Classics, to universal acclaim.
Less dramatically, a promising but commercially marginal book by a new writer may be ruled out by some extra-curricular activity which places him or her at risk. It may be argued that the ‘risky’ author should reasonably be prepared to accept a lower advance, and then earn the royalties for as long as he or she lives. But a publisher first decides whether the publication of a given book is a viable proposition. If it is, then everything else is a matter of negotiation, if not, then the author’s willingness to accept deferred payment is practically irrelevant. Also, every author knows that the advance is an indication of how much money the publisher expects to make from a book, and therefore how much effort they put into selling it. If they pay next to nothing, in general they do next to nothing.
For those authors who do get signed up a different prospect looms – it will become a matter of financial necessity for their publishers to keep them alive for as long as possible. What effect might this have on that great institution the publisher’s lunch? Will my editor continue to consume unwise quantities of wine and food (in that order), while he offers to toss me a green salad and pour me a mineral water? This apocalyptic vision is surely beyond human contemplation.