Unpublished works

Copyright gives an author several instruments to make money off his works. It is up to the author to actually exploit those instruments, but at least he has them.

Some people question the validity of those instruments; for instance, why do works continue to be burdened by copyright even after the author has died? And why do these terms get longer and longer? Well, the argument goes, the author can use the extended time as leverage during negotations with the publisher. The longer the publisher is allowed to make the book, the more money the author can ask upfront for himself, or during the copyright term for him and his heirs.

Although in theory that would be a valid argument, in practice such extensions get written into the law by publishers, so it is doubtful that the argument holds. But lets not talk about that.

What’s really baffling to me is that in some jurisdictions, unpublished works that are discovered after an author’s death, still get a copyright attached to them. Why on earth is that?

There are several reasons why copyrights exist in the first place. Because we want to stimulate the production of works. Because we feel it is fair somebody gets rewarded for the work they do. Other reasons perhaps. None of those explain copyright on unpublished works.

Basically, the copyright on an unpublished work is like a gold ore. Those who find it first, get to stake a claim. It’s finders keepers. There’s something wrong with that. Copyright was not meant to be a lottery. Copyright was meant to provide society with very real benefits.

Any copyright lawyers in the room who can explain it to me?

8 responses to “Unpublished works”

  1. Peter Rock says:

    I’m not a copyright lawyer, and don’t know for sure… but I’ve got a question. Have you confirmed that discovering an unpublished work after an author’s death is really “finder’s keeper’s”? I would guess that the law probably favors family members or institutions of work over the actual “finder”. Like I said though – I’m not a lawyer and I’m not sure myself.

    Regardless, what I love about the Creative Commons is that it is like the “hack” of traditional copyright over creative works. Much like Stallman’s GPL. The whole notion of “the lifetime of the author + X amount of years” is completely out of control. The CC helps bring a balance back to copyright.

    Anyway, if you find out about what the law says regarding “post-mortem” undiscovered copyright (perhaps there is some precedent ruling out there), let me know. Neat blog by the way – was linked to it through a comment you left at Lessig’s blog in response to a Richard Coleman comment. By the sound of his comment on Lessig’s blog I was curious to find out more on the “Coleman Law Firm”. Was a little turned off by the “Smart Lawyers for Smart People” trademark. The “crossed arms with smirk” photo is a little …”unsettling”, so to speak. And based upon the firm’s website, they (him?) are huge believers in “IP”.

    But then again, even if it appears that I loath this firm’s seemingly “for-profit” approach to IP law, he’d be an excellent resource to answer the “death/discovery” copyright question.

    And perhaps I’ve got him and his firm all wrong – he may give us an answer pro bono.

  2. Branko Collin says:

    Peter, I am afraid that I don’t know much about the letter of copyright law other than the Dutch one. Dutch copyright law has Chapter VII, which states:

    Chapter VII. Protection of Works Published after the Term of Protection

    Article 45o

    1. The person who legally publishes an hitherto unpublished work work after the term of copyright, is granted the exclusive copyright [to this work–BC].

    2. Copyright expires after 25 years, to be calculated from January 1 of the year after which it was first published.

    3. The same goes for hitherto unpublished works that were never protected by copyright and of which the maker died more than 70 years ago.

    Note the convoluted language: “Protection of works published after the term of protection”, “legally publishes” (how can you illegally publish if the term of protection has lapsed?), etc.

  3. Matt says:

    Hi Branko. Read Harper & Row Publishers, Inc. v. The Nation Enters., 471 U.S. 539 (1985). Here’s a link:

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=471&page=539

    This is a famous case from the mid-1980s involving the unpublished memoirs of President Ford. The work was valuable because Ford was going to disclose information about his pardon of President Nixon. Time Magazine purchased from Harper & Row, the copyright owner, the right to publish some excerpts about the pardon in their magazine about a week before the street date of the book. However, The Nation obtained a leaked copy of the unpublished work, and published the juiciest parts of the manuscript before Time could, thereby ‘scooping’ Time’s story. Time cancelled the contract with Harper & Row, who in turn sued The Nation for copyright infringement.

    The case is mainly cited for its discussion of fair use. But it’s an important case because (1) it’s the Supreme Court talking, and (2) it’s about fair use of an unpublished work. Whether a work is published or not isn’t a consideration listed in the four-part statutory fair use test under 17 U.S.C. 107. But after this case, when the work is unpublished, the court probably has to account for that fact in its fair use analysis, and thus apply the four-factor balancing test more stringently against the user.

    The reason why lies somewhere in the Court’s discussion of what it calls ‘the right of first publication.’ The Court acknowledges that this isn’t an exclusive right of the copyright owner enumerated under 17 U.S.C. 106. But looking at copyright and fair use historically, the Court calls the right of first publication an important and marketable subsidiary right under the right of distribution (see 17 U.S.C. 106(3)). In other words, the Court says that the law should respect a copyright owner’s decision about whether to publish a work at all, and if so, how. Most European countries give a slightly different by generally equivalent kind of protection under a ‘moral rights’ regime.

    Hope this helps your understanding of the protection of unpublished works.

  4. Branko Collin says:

    In other words, a publisher can incentivize an author to produce a work with the condition (set by the author) that the work not be published until after he has died.

    Thanks for the example!

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