The triumph of…what?

Given that my post about George’s 1913 visit to Madeira was up for over a fortnight, that Alison’s guest post (which was another in the ‘new biographies’ series) has been up for ten days, and on 21 April Laurence Brockliss’s guest post Journalists in Victorian and Edwardian Britain will also go up for ten days, it may reasonably be asked what I myself am doing with my time…

The answer is, three things: pursuing Permissions, researching and writing batches of six proposals to publishers, and creating another book (admittedly only 30,000 words long and with a co-author). This and my next two posts, then, will fill you in on these different activities, which together are employing me for about thirty-five hours a week. Meanwhile, positive and negative responses dribble in from the publishers I approached in the previous two months.

‘Permissions’ are what you have to get from the owner(s) and copyright holder(s) of works that you want to quote from in print, when these works are still in copyright. So that is the first complication, or multiplication of effort: each permission for an unpublished manuscript item requires two separate and parallel applications. Naturally, I would never have started writing George Calderon: Edwardian Genius without having already been given permission to quote from George and Kittie’s writings by the owner of the manuscripts and owner of George and Kittie’s copyright, which happen to be the same estate. But there are dozens of letters etc sent to George and Kittie between about 1880 and 1946 that I want to quote from but whose copyright is owned by someone else.

‘What,’ you exclaim, ‘copyright lasts only to seventy years after an author’s death, the overwhelming majority of the writers of these letters etc must have died before 31 December 1946, so you don’t need to get copyright-owner permission!’

Ye-e-e-e-s, that would be the sensible, pragmatic assumption. In fact some institutions that own works and the copyright therein believe that is the case, and blithely tell you these works are out of copyright and you can go ahead and publish them. But the truth is more Byzantine and bizarre, as this little masterpiece will make clear:

www.bl.uk/reshelp/pdfs/copyrightflowchart.pdf 

An unpublished letter to George dated 1888 from a known person who died in 1898 will cascade down the right hand side of the algorithm to the bottom right hand box, which tells you that copyright in it ‘expires 31 December 2039’. ‘What? How? Surely some mistake?!’, you exclaim again. No, no mistake: that is the current legal position. Not only is an unpublished letter that was written by someone over a hundred years ago who died over a hundred years ago (a letter owned by someone related or not to the addressee but probably not to its author) copyright until 2039, any unpublished text written by someone who died whenever before 1969 is still in copyright. Thus if an unpublished manuscript of Shakespeare, Chaucer or Boudicca suddenly surfaced, it would still be in copyright and the ‘owners’ of that copyright should be traced and permission to publish sought from them. In fairness, the Writers Artists and Their Copyright Holders (WATCH) database tells us that there seem to have been no cases so far of ‘copyrights persisting from much before the period of Byron, Shelley, Wordsworth and Coleridge’. But please do not feel relieved: if you think about it, the latter statement is quite surreal enough.

I am not going to attempt to explain how this situation came about, or the mathematics of it. This page of WATCH’s website gives as accurate an account of the events as you will find anywhere:

http://www.hrc.utexas.edu/research/watch/uk/

However, I doubt very much whether you will actually be able to make more sense of how the various acts (particularly the EU Directive on Term of Copyright, which we adopted in 1996) combined to produce the current situation, than I can. One has the impression of a series of committees each of which produced impeccably logical and rational decisions about copyright, but which were not joined up, never talked to each other, and had no umbrella or lateral vision. When their decisions were simply lumped together it inevitably produced something entirely irrational; a monster. As the WATCH account testifies, plenty of people out there regard the present law as ‘absurd’, but the British government has spent five years ‘actively considering amending it’ without doing so.

If the British rules on copyright are currently ‘absurd’, the implementation of them is, I believe, clinically insane.

Most institutions who own authors’ archives do not know who owns those authors’ copyright. One archive of an eminent figure tells me that they ‘never managed to get to the bottom’ of who owns this person’s copyright today, so they, the archive, have arrogated it, which must be legally impossible (another Gogolian absurdity). The WATCH database is a superb amenity for tracing copyright owners, but of course it only covers a fraction of authors. As you can see from its link, if you can’t trace a copyright holder through WATCH you are recommended to set off down the path of fourteen other methods. I estimate that to complete this procedure would take you at least a day and a half for each author. You might, of course, have anything upwards of twenty such authors you want to quote. Just to reiterate: we are not talking about published works, but unpublished ones stretching back to the dawn of time…

At this point, perhaps, it may seem that reason reasserts itself. After months have passed whilst you wait for responses to each of your copyright initiatives as recommended by WATCH, you might reasonably conclude that it’s impossible to identify who owns the copyright in the particular letter, and WATCH tell you you can go ahead and publish ‘in cases where the copyright holder is unknown’. You may also have heard the oft-repeated view that ‘if you have made all reasonable attempts to locate a copyright owner, and failed, you may reasonably go ahead and publish’.

But you would be wrong. It is at this point that the procedure definitively moves into the realm of delusion and lunacy. The government has set up from public funds the Dickensianly named Orphan Works Office (OWO):

https://www.gov.uk/guidance/copyright-orphan-works

If, after months of labour, you can’t track down the copyright owner of that signed laundry list, you have to apply to OWO. You ask them, at a cost of £20 per ‘work’, to issue you a licence to publish a work that is ‘orphaned’ because its copyright owner is unascertainable — a licence to publish a work that OWO cannot possibly own the copyright in. Your application, moreover, for a permission they cannot actually give, may or may not be ‘successful’, as they put it. Truly, this is a trade in dead souls. Moreover, as with WATCH’s ‘fourteen steps’, one can imagine the bureaucracy behind it rivalling that of the Gogol story in which an application is ‘processed’ for three years by lying in an office cupboard which ‘acquired so many spatters of ink it became marble’.

For connoisseurs, the combination of the 1988 Copyright, Designs and Patents Act with the EU Directive on Term of Copyright is folly of the very finest bouquet, viz. that produced by the exhaustive, inexorable, implacably ‘logical’ implementation of utter nonsense. They haven’t heard of Viktor Shklovsky’s famous saying that ‘the too literal carrying out of orders has always been a form of sabotage’.

But actually, I don’t think it’s funny. It’s a sinister case of state dementia. It’s the sort of thing that massive empires like Russia or Austro-Hungary produced in the past and that crushed their subjects with inanity. It’s the stuff of the most rivetingly boring novel ever written: Kafka’s The Castle. It is enough to make you lose the will to live. Imagine if you set off down the WATCH-OWO path: as you wandered in the bureaucratic desert, you would get further and further away from the book you had written and that all this idiocy was ostensibly about; you would forget the book; you would lose sight of all creativity, literary excitement, verbal relish, imagination, art. To quote Joseph Conrad on Tsarist Russia, current British pseudo-legislation on the copyright of unpublished works is ‘simply the negation of everything worth living for’.

Of course, it was devised with the best intentions. There is not the slightest doubt that authors’ copyright always needs defending. But seventy years after their death seems good enough for both published and unpublished works. When you have tracked down the obscure relatives who ‘own’ unpublished copyright under the current law, they often do not want to know, are bemused, or only interested in whether they can make some money out of this flattering greatness thrust upon them. The law may have been conceived with impeccable ‘liberal’ intentions, but it has achieved the triumph of…well what, actually?

As I have said, it is essentially the triumph of lunacy, of an official psychosis. But on reflection, there is a far better English word for it, as used by our greatest satirists: ‘Dullness’.

Still her old Empire to restore she tries,
For, born a Goddess, Dullness never dies.

(Alexander Pope, The Dunciad, Bk 1, ll. 17-18)

*               *               *

Having over the past two months succeeded in tracking down the copyright owners of fifteen authors of unpublished material 1880-1946, I am going to re-read my whole typescript this week to check that I haven’t missed any. I am sure I will have. Presumably in another month or so I might be able to write my ‘Acknowledgements’.

Seriously, though: are we bound to obey bad laws?