Art long, life short, copyright extended

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THE DESCENDANTS and beneficiaries of some of Britain's most distinguished authors - George Orwell, H G Wells, Bernard Shaw and Walter de la Mare - are to enjoy an unexpected windfall.

Following a decision by the European Council of Ministers, confirmed last week by Trade minister Lord Strathclyde, from 1 July next year authors' copyright is to be extended from 50 to 70 years after their death. Once a work is out of copyright, anybody can publish it without paying royalties to the author's estate.

The change will mean that the estates of British authors whose works were due to come out of copyright in the fairly near future will be entitled to a further 20 years' royalties.

Shaw (1856-1950) left the proceeds of his estate to the British Museum, the National Gallery of Ireland and the Royal Academy of Dramatic Arts, which will thus benefit by many thousands of pounds. So will the adopted son of George Orwell (1903-50), Richard Blair, the two grandchildren of H G Wells (1866-1946), and the 20 grandchildren and great-grandchildren of Walter de la Mare (1873-1956).

The move to harmonise copyright protection upwards throughout the EC to the level enjoyed by German authors - the writer's life plus 70 years - is not a universally acclaimed step, however. There are widespread fears in the publishing world that the EC directive, which requires UK legislation to increase the term, could lead to British authors already out of copyright going back in again.

Thus Virginia Woolf (1882- 1941), W B Yeats (1865-1939), Rudyard Kipling (1865-1936), James Joyce (1882-1941), John Buchan (1875-1940), 'Sapper' (1888-1937) and Beatrix Potter (1866-1943), for example, could all go back into copyright after July next year. This is because, some lawyers argue, the directive can be applied retrospectively.

Hugh Jones, a solicitor specialising in copyright and publishing law, writing in the Bookseller, says the EC directive applies to European works which are protected by copyright under national provisions of copyright in at least one member state on 1 July 1995. 'These words may be important,' he says. 'A UK work may have fallen out of copyright here, but if it is still protected in at least one member state on 1 July 1995 it will qualify under the directive for the full period of life plus 70 throughout the Union, including - retrospectively - the UK.'

The position is further complicated by a decision of the European Court of Justice in October 1993 involving the copyright of some of the songs of the rock singer Phil Collins. The court decided that Germany had to grant copyright protection to all community citizens and not just its own nationals in order to comply with the principle of non-discrimination in Article 7 of the Treaty of Rome.

Mr Jones says: 'If this is right . . . it may significantly increase the category of works to which the directive will apply on 1 July 1995. It may even extend to works of UK authors now out of copyright - e g, Kipling - if German law would protect them had the authors been German nationals.'

There is still a considerable degree of confusion in the publishing world about precisely what the legal implications of harmonising protection at 70 years will be. Michael Sissons, managing director of Peters, Fraser and Dunlop, the literary agents, said: 'We consider ourselves pretty hot dudes on copyright but we are thrashing around on this matter.'

Patrick Parrinder, professor of English at Reading University, believes that the position of authors who died between 50 and 70 years ago is now 'very unclear'. Currently available texts, he adds, may have to be withdrawn after July next year.

Mr Sissons thinks that the new directive and the safeguards that Gatt now offers against piracy will lead to a 'golden age for writers, particularly in the English language'. New markets, for example in the Pacific Basin and China, will open up, and writers and artists will enjoy hitherto undreamed-of protection.

But Professor Parrinder fears that the extension of copyright will restrict the access of scholars, literary critics and biographers to authors' works and delay the creation of definitive texts, for example, the recent revised edition of James Joyce's Ulysses. He said: 'It may be very difficult if an author is in copyright to write a genuinely independent biography, given the kind of literary estate which is very jealous of preserving the privacy of the author.' (The estates of T S Eliot and Sylvia Plath are two such.) Professor Parrinder added: 'It seems to me that there is a trade-off between the interests of copyright owners and the interests of free speech and public discussion. Things have leant much too much in the interests of copyright owners.'

He believes the copyright period should be reduced to 25 years.

Academic and educational publishers and those who specialise in publishing the classics are against the longer copyright period because it will restrict their access to the original works. Some academics also argue that imaginative works belong not to the descendants of authors but to the people.

Maureen Duffy, the author and chairman of the British Copyright Council, sympathises with the frustrations of biographers and scholars, but says it must be remembered that 'after a post-mortem drop in interest, many composers and visual artists, as well as writers, then make a comeback into classic status.'

Some people, she says, 'would argue that intellectual- property rights should be as perpetual as rights for physical property'.

Andrew Motion, the poet and literary executor/biographer of Phillip Larkin, believes that, in so far as the 70-year directive puts writers first, it is broadly desirable. As far as establishing definitive texts is concerned, that should be the responsibility of literary trustees. If a literary estate is difficult anyway, he says, then 20 more years' copyright will scarcely make any difference.

'Speaking as a writer, I want to go to my long house knowing that the children are going to get royalties for the next 60 years or whatever.'

(Photograph omitted)