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Friday, 28 October 2022

Copyright in the Estate of William Shakespeare


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 CarrĂ© 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.