An interesting piece about the publication of a work by James Joyce by a small publisher in Ireland.
The Joyce foundation has apparently called the publication an "outrage" as "it had not granted permission for the book's release" — despite the work seemingly being in the public domain.
On what basis, then, does (or should) the foundation be entitled to grant, or withhold, permission — on what right is the permission founded?
I'd question whether there should be an expectation of privacy now that Joyce is so long dead, particularly since the publication here does not harm (other than in the sense of a perceived right of control / remuneration) any of his remaining family, and I'm skeptical that confidence should apply here either.
There's an interesting question behind this; after the term of copyright has expired, is there, or should there be, a right to prevent publication of what was previously a copyright work?
II too was surprised by this story. I did some digging and found a provision in Schedule one of the Copyright, Designs and patents Act 1988. It states that:
ReplyDeleteCopyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—
(a)literary, dramatic and musical works of which the author has died and in relation to which none of the acts mentioned in paragraphs (a) to (e) of the proviso to section 2(3) of the 1956 Act has been done;
Translated into English, this means that unpublished works written before 1989 (when the relevant provisions of the 1988 Act entered into force) will be protected by copyright until 2039. Unpublished works dating acter 1989 will get the standard life plus 70 years.
I never knew that :-)
I'm now told by an Irish friend that the copyright position under Irish law is 'as clear as mud'.
ReplyDeleteHopefully this one may run and run.
To Neil's question:
ReplyDelete"after the term of copyright has expired, is there, or should there be, a right to prevent publication of what was previously a copyright work?"
My first reaction is "yes - in certain circumstances".
If you believe in the "right to be forgotten" then I could see an argument being made that a copy of a letter to a family member that was never intended to be published should not be able to be published no matter when the author died. The fact that the letter does no "harm" objectively should not make a difference.
Having said that, I don't think that is the case here. The Zurich Joyce Foundation states:
"The Zurich James Joyce Foundation was established in 1985 with a view to keeping alive the memory and work of the Irish writer James Joyce for the literary world in general, and above all for Zurich, where he spent some important creative years and where he died."
Keeping the work alive for the literary world in general is a pretty ambitious project, such that one might have expected the Foundation to welcome such a publication! (I wonder if any of the Trustees are considering resigning in protest...)
Therefore, I don't see the Joyce Foundation as being able to rely on any privacy-type arguments here.
Ian's comment also made me consider which copyright statute would apply to this work? From a quick Wikipedia search I discovered that under Swiss Law:
"As a result of the non-retroactive revision of 1992, when the 50-year copyright term was extended to 70 years, works that were already in the public domain in 1993, when the new law started being applied, do not benefit from renewed protection; therefore, all works made by authors deceased in 1942 or before are in the public domain in Switzerland"
Joyce died in 1941. This seems to indicate that, at least in Switzerland, this work could have been freely published anytime in the last 20 years.
So a basic question: how does one determine which copyright law applies in any given situation? Is it the law that applies in the location of the Publisher? If so, it would seem that an English publisher would be prevented from publishing this until 2039; but a Swiss publisher could already have published it!
Lots of interesting points and with all interesting issues, more questions than answers (at least from me).
DeleteI wonder whether the Zurich foundation have any copyright in Joyce's writing? The book was published, I believe in Ireland. An Irish friend described their law as being 'as clear as mud'. I think he had been out celebrating recent football news from Scotland so this is not perhaps his most scholarly opinion!.
Copyright can, of course be infringed by distributors so there could be action in the UK or Sweden. Given the price charged for the book, I wonder whether the US might be the main market. All very messy.
Finally, for now, do dead people have a right of privacy? There was an interesting piece on, I think, the BBC web site about the right of relatives of dead persons to have their Facebook pages removed. I think this is going to become quite a big issue.
Lots of interesting points and with all interesting issues, more questions than answers (at least from me).
DeleteI wonder whether the Zurich foundation have any copyright in Joyce's writing? The book was published, I believe in Ireland. An Irish friend described their law as being 'as clear as mud'. I think he had been out celebrating recent football news from Scotland so this is not perhaps his most scholarly opinion!.
Copyright can, of course be infringed by distributors so there could be action in the UK or Sweden. Given the price charged for the book, I wonder whether the US might be the main market. All very messy.
Finally, for now, do dead people have a right of privacy? There was an interesting piece on, I think, the BBC web site about the right of relatives of dead persons to have their Facebook pages removed. I think this is going to become quite a big issue.
p.s. check out the cases involving the photographs of "Bob Marley" and "Meili":
ReplyDeletehttp://en.wikipedia.org/wiki/Copyright_law_of_Switzerland
Copyright was found in one but not the other. Putting all legal wordiness aside it seems to me that Swiss test can be boiled down to: "is it a good photo?" Hooray for the Rule of Law! This seems almost as arbitrary as the London Bus case...
Ian — how interesting! I had not come across that provision before.
ReplyDeleteDavid — I agree, the position is incredibly tricky.
It would not seem right that, just because something is not protected by an intellectual property right, it is automatically fair game for publication; that would not seem correct at all.
With the ever-expanding notion of privacy, it would seem that the right of privacy could well be used to protect unpublished personal correspondence from publication, although the position after death is perhaps more challenging, unless the publication would have an impact on living individuals.
However, it would be important to bear in mind that, just like the right to intellectual property, the right to privacy is a qualified right; it's protection is not absolute. If one could argue that the right to privacy should survive death, it may still follow that the right is outbalanced by the interests of publication (freedom of expression.)
> how does one determine which copyright law applies in any given situation?
Generally, yes, the place of the person who performs the act in question. If I carry out an act from my home in England, I would expect to comply with copyright law as it applies to England.
It becomes somewhat more complicated where my act has international effect (for example, running a server available in other countries, particularly where I start encouraging citizens of other countries to perform acts which breach local laws), but, at least in the UK, the jurisdiction would seem to be that of the location of the server (Football Dataco v. SportRadar).
However, where the claim is one of authorisation of copyright infringement, the act of authorisation does not have to occur in the United Kingdom, provided that the primary act of infringement purportedly authorised does occur in the UK (see, for example, Newzbin).