Return of the living dead

Kipling, Woolf and Joyce are out of copyright. Soon they will be in again. Good news for their estates. Bad news for us? By Christopher Hawtree
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James Joyce and Phil Collins are rarely mentioned in the same breath. After all, the novelist was not only a master of language but also the better singer. Speak with any publisher of the classics in recent months, however, and mention is soon made of "the Phil Collins case". Little did Collins realise that a concert in America in 1983 would have an effect upon Ulysses and cause many people sleepless nights. The performance was bootlegged and sold in Germany on CD. He took legal action there, and found that copyright protection applied to non-German EC nationals only if the concert had taken place in that country. The case went to the European Court of Justice, the crux being whether a member country could, in effect, discriminate against others in this way.

He won at the end of 1993, and in due course it was decreed that copyright in all media must be "harmonised" across Europe. This has led to discord and bewilderment within publishing, an industry which, even in this age of digital technology and corporate strategy, largely operates on gut feeling and lunch. It is a wild world. Disaster is commonplace, neuroses prevalent. Small wonder, then, that publishers seek refuge among the dead. Their sales are certain and they cannot turn up in the office to make a fuss, although, in their stead, often comes academic controversy.

Standard publishing practice has been to keep an eye on the calendar and work out who will have died 50 years ago and - joy of joys! - be out of copyright. HG Wells next year, George Orwell soon after. These will appear in - or would have appeared in - a plethora of editions and joined the massed ranks of Kipling, Hardy, Lawrence, Housman, Galsworthy, Bennett, Joyce, Virginia Woolf, EF Benson, Yeats, Chesterton, Ford, Buchan, Edith Wharton, Conan Doyle and Scott Fitzgerald, all of whom have recently come up for grabs.

Now, from out of the blue, all concerned have to face the return of these living dead. The rest of Europe comes into line with Germany, where copyright lasts for 70 years after an author's death or from first posthumous publication. Bogglingly, Kilvert, dead in 1879 but not published until 1938, will be in copyright until 2008. Simple, perhaps, to have curtailed German copyright (established in 1965), but a right, once granted, cannot be rescinded. Germany chose 70 years because copyright is meant to benefit an author's grandchildren, and people now live longer - and also to compensate for the disruption of war. It's a grim irony, then, that millions of books here might now have to suffer an orgy of destruction unmatched since Berlin in the Thirties.

That copyright should ever expire sometimes appears rum. As William Boyd observes, "Build a house and it's not open to squatters 50 years on." And Dr Johnson made much the same point, saying to Boswell: "There seems to be in authors a stronger right of property than that by occupancy; a metaphysical right, a right, as it were, of creation, which should from its nature be perpetual; but the consent of nations is against it, and indeed reason and the interests of learning are against it; for were it to be perpetual, no book, however useful, could be usefully diffused among mankind." His view elsewhere was that "those which 50 years have not destroyed should become bona communia".

With such thoughts in mind, John Wyse Jackson recently told his publishers, Sinclair-Stevenson, to make sure that the paperback of his lavishly annotated edition of Dubliners appeared before 1 July. He feared that, after that date, authors' estates would regain copyright and there would be no chance of continued sales.

In fact, everybody is in limbo about when these changes will come into effect. This Monday sees the deadline for consideration of the Department of Trade and Industry's draft proposals for copyright extension, although they are not expected to be implemented before November. The lawyer Hugh Jones, of Taylor, Joynson and Garrett, is advising various parties and points out that, far from harmonising Europe, the ruling will create discrepancies. Each member state can decide how to implement these renewed copyrights, so a book under an estate's sole control in one country might not be in another.

At the Society of Authors, Kate Pool says of the EC ruling, "It's a fact that we cannot change, and the question is how we live with it - once we know what's involved. Everybody is utterly frustrated right now. Naturally, we see it from both sides, with some estates hopeful while others will have to pay for material that would have been free." One of the society's stalwarts, Michael Holroyd, is firmly against the 70 years rule, "even though I might, as executor of Hesketh Pearson and others, benefit from it. It's a needless complication: Brussels has no idea of the ramifications. It could well hinder knowledge. My idea was that those copyrights caught in an in-between phase should go to benefit literature in general. My worst fear is that there will be an unholy marriage of scholarship and commerce such as we saw when Lawrence came out of copyright and the estate tried to engineer a new copyright with the Cambridge Edition." He is also rueful that the British Museum might have another 20 years' worth of Shaw royalties and continue to use them in ways the playwright never intended. "I'd looked forward, come 2001, to new productions by young directors freed from the estate's control."

Nobody can plan beyond a few months, crippling for any business. At Oxford University Press, the World's Classics editor, Catherine Clarke, has 75 titles due to come back into copyright (some 20 per cent of turnover), among them Jeri Johnson's fascinating edition of Ulysses. Amid recession, classics have become fiercely competitive. Even the safely dead Brontes and Dickens are slugging it out at the pounds 1 mark with the advent of that canny firm, Wordsworth. Its company secretary, Clive Reynard, says that when push comes to shove, some firms might gain as much as they lose - Penguin, for example, could relicence its Orwell list.

"The way in which all this has come about makes for an industry in chaos," affirms Reynard. Catherine Clarke agrees, pointing to the predicament of anthologists who now wonder whether, for any reprint, they will be dunned for unexpected, probably unviable fees. OUP decided recently against one anthology lest this happens. "In any case, permission fees have gone up by as much as 30 per cent, which make anthologies a doubtful proposition these days, as do some estates' demands for a royalty on their subjects' biographies." And John Wyse Jackson recalls that the author of a study of Joyce's language, a subject scarcely open to paraphrase, paid more in fees than her pounds 600 advance.

"People forget how lucrative some estates are," says Jeremy Lewis. "When I worked at AP Watt, a fortune churned through, as old Watt was one of the first literary agents and so he got all those authors who have only recently come out of copyright. It looks like hairy times ahead - on a par with the cod wars, VAT and the single currency."

But even if the worst happens (and the situation will be further complicated when the baroque American law changes), all is not entirely lost. One publisher notes that copyright remains 50 years in Australia, India and New Zealand: millions of copies could be shunted there. As for Rider Haggard, he can be stockpiled until January, when he'll be out of copyright a second time. As one author, weary of these anomalies and aggravations, remarks, "I could bear it all more easily if tax on booze came into line with France."