The Works of William
Shakespeare remain part of living cultures at least partly because there is no
Estate of William Shakespeare. You can do what you like with Shakespeare and no
one will appear to tell you that it’s going to cost or that under no circumstances
may you cast a black actor as Hamlet. We are fortunate that Shakespeare was not
born more recently, in which case he would surely join the ranks of those whose
Estates are synonyms for rent extraction and cultural policing.
The Literary Estate
Problem can be traced back to Article 1, Section 8, Clause 8 of the American
Constitution “To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries”. Well, that’s clear enough: a limited time is not an
unlimited time. But is a limited time seven years, seventy years, or (watch out
for Mr William Shakespeare’s lawful heirs & assigns) seven hundred years?
Theorists of intellectual property
rights would probably like to go for perpetuity: a house can pass from heir to
heir indefinitely and quite a number have done so ever since they were first
built; the standing and success of English aristocratic families can be
reckoned by how long they’ve not had to sell the house. If houses can pass on
indefinitely, why not likewise copyright in the works of any writers who may
have lived there?
The US Constitution implicitly
blocks that argument and we may be grateful, though the block has occasionally
been breached. The authors of the Constitution (who by the way claimed no
copyright on their work) were working in the opposite direction, trying to
create new rights where none or only very weak ones previously existed. So the
intellectual property theorist, unable to sustain “perpetuity”, can simply focus on
the interpretation of “limited times” and aim to make them long as possible.
How should one interpret "limited times"? One
could start by asking if all cases are alike; intuitively they are not. Many
technological developments (including pharmaceutical innovations) require
enormous investments which will now only be made if there is a guaranteed
period in which the exploitation of any successful innovation is protected by
copyright and patent law. In contrast, I doubt that anyone has ever written a
novel after careful assessment of local copyright law, and probably concluding,
“Nah, the period is too short to make the labour of War and Peace worthwhile. But a little novella …”.
Some, maybe many, writers aspire to
live by their pen (as John le Carré always liked to put it; he never typed so
he was being accurate) and the aspiration seems legitimate but usually only
realisable if there is some kind of copyright protection. An alternative model was
pioneered in the Soviet Union where writers might aspire to collect a salary
for their work rather than royalty payments, That’s what the Writers’ Union was
all about and I doubt it is a model which now appeals to anyone. It’s true, we
do pay writers salaries if they call themselves Academics but at the same time allowing them to collect royalties
on what they write. Like NHS consultants, they end up working in both public
and private sectors. This is most obviously true for those who work in
university Creative Writing departments, the closest we get to the Soviet model.
The aspiration to make a living
from writing might seem to suggest a clear interpretation to “limited times”:
copyright protection would expire at death, when the writer can no longer
aspire to anything.
But what about the widow? Or to
modernise the question, What about the surviving partner? Well, normally, if
there is a bread-winner then he or she is expected to make provision in their
lifetime for anyone who may survive them and which will supplement or replace
whatever state provision is on offer. Yes, but let’s be frank: writers rarely
make a lot of money. They barely manage to make ends meet. But if you allow
copyright to be inherited, a surviving partner at least gets something, though
how much is unpredictable. And then when they die, the copyright expires.
Ah, but what about the writer who
prefers to assign copyright to the dogs’ home? How long should it last then? In
the case of J M Barrie’s Peter Pan here
in the UK we have a special law, passed in Parliament, which grants Great Ormond
Street Hospital copyright in perpetuity.
But would you want to do that for your local dogs’ home? The trouble with the
Barrie law (introduced by a former Labour Prime Minister, James Callaghan when
he had become Lord Callaghan) is that it sets a really bad precedent. Copyright
gives you the right not only to ask for money but to dictate how a play may or
may not be performed or a novel edited.
Except for that one case, then in current
English law copyright expires seventy
years after the death of the author. I don’t think that’s anything more than
a triumph for rent extracting agencies, for corporations and lawyers. Is there any justification at
all for it? I’m trying to think of some without much success. But let’s try.
If copyright expires at death then
a publisher has less incentive to keep a work in print since anyone could now
bring out a rival edition at a lower price. That seems a feeble argument, undermined
by the fact that bookshops are full of cheap (and very well-edited) editions of the Bible, Plato, Shakespeare, Jane Austen … In many case, there are
indeed rival editions and an informed reader will know that some (Penguin Classics)
are usually better than others. Publishers manage to claw back a bit of
copyright protection by commissioning Introductions and Bibliographical
apparatuses. That doesn’t really undermine the general principle that other
editions of the core work are possible, no permission needed. The argument is
even more feeble if it is supposed to keep works in print for another seventy
years; it won’t. Most books simply go out of print for reasons entirely
unconnected to copyright law. They die from lack of interest, that’s all.
Keeping interest alive is a real
problem for publishers. It is partly solved by the happy accident that all
serious writers realise that they have an obligation to leave behind a room full
of juvenilia, unfinished works, and - best of all - hundreds and hundreds of Letters which have been carefully crafted (both ways: sender and receiver) to arouse
interest, ideally scandalised and prurient. He was anti-semitic. She was
lesbian. He beat his wife. She fucked everyone. A serious Literary Estate will
command enough resources to appoint researchers and editors who can convert this base metal into the gold of must-read hardbacks which, as an
additional benefit to the Estate, lead some readers to the original poems,
novels, and plays. How widely read would Bloomsbury’s authors be now without
the Letters?
It’s a problem that the State is
not neutral about the desirability of all this. It has a stake in extended
copyright: governments collect tax on the income of Estates whose activities
contribute to overall GDP. It’s as if the writer is still busy writing after
death, generating income, jobs, and taxes. I hesitate to mention this benefit
to the State because someone at my local UK Treasury is now going to make the
case for creating an Estate of William Shakespeare: nationalising it and
collecting bucketloads of money on copyright permissions - as well as forbidding
any interpretations of Shakespeare which might imply criticism of the Ruling
Party (“To be Prime Minister, or not to be Prime Minister. That is this week’s
question”).
I’ll stop there (1282 words showing)
and conclude that it would be a progressive move to campaign for a
reduction in the standard period of literary copyright. In place of seventy
years I propose seven years - enough time to fund heirs and executors as they
set about tidying up the affairs of a deceased writer.
