Locked away for over a century, Mark Twain’s autobiography will be published for the first time next month. Why the delay? Despite completing the work before his death in 1910, Twain instructed his publishers not to release it for a hundred years. The story goes that Twain wanted to ensure that anyone he poked fun at, ridiculed or (possibly!) defamed, had – like him – well and truly passed on to the next life by the time copies hit the shelves. Cynics, of course, might argue that Twain’s wish only served to ensure that the release of his autobiography would attract as much publicity as possible – even if this meant delaying its publication until the twenty-first century. Whatever the reason, the first publication of a work 100 years after the author’s death gives rise to some rarely-posed questions in copyright law…
Some in the US have already started asking how The Mark Twain Foundation can validly make a claim for copyright in the autobiography (with the term of copyright commencing in 2010) when Twain passed on at the beginning of the twentieth century.
Here at the IP Whiteboard, we thought we’d examine how our Copyright Act 1968 (“Act”) would deal with a similar situation. So, for the analysis below, let’s imagine Twain was born in Melbourne (not Missouri) and that he famously penned the adventures of a young boy who grew up in the town of Wodonga on the banks of the mighty Murray River. In order to keep things current, let’s have a look at this hypothetical situation under the 1968 Act, as it stands today.
Those familiar with basic copyright principles will see an immediate problem with a claim for copyright in a work first published a century after the author’s death. Generally, duration of copyright is determined by reference to when the author died. Put simply, s 32(2) provides that copyright subsists for 70 years following the death of the author. So, does this mean that any copyright which might have subsisted in Twain’s autobiography (by virtue of it being an unpublished work) would have expired in 1980? Surely there’s another answer; otherwise Aussie Mark (and his estate) would have no opportunity to exploit the copyright in the work…
A little-known fact, the name ‘Mark Twain’ was actually a pseudonym for the novelist’s birth name, Samuel Langhorne Clemens. Section 34 of the Act provides for duration of copyright in anonymous and pseudonymous works. Instead of determining copyright by reference to the year in which the author died, copyright in anonymous and pseudonymous works subsists for 70 years from the date of first publication. If you think about it, this makes sense: We don’t know who the author is, so we can’t determine duration by reference to their death.
But, it’s not that easy for Aussie Mark. Under s 34(2), the above provision does not apply if the identity of the author becomes known, or can be obtained by reasonable enquiry, before the 70 year period comes to an end. Presumably, then, the situation reverts back to determining duration by reference to the date of the author’s death. Given that Wikipedia will tell you that Samuel Clemens is ‘Mark Twain’, we’re back to square one…
Enter section 33(3) of the Act. While we couldn’t really find any instances of this section being considered by the Courts, this provision would arguably operate to ensure that copyright will subsist in Twain’s autobiography, notwithstanding the fact that he died a century ago and that the work is not ‘anonymous’ or ‘pseudonymous’ in the true sense of the terms. Section 33(3) provides (paraphrased):
If, before the death of the author of a literary work…:
a) it had not been published (tick!);
b) it had not been performed in public (tick!);
c) it had not been broadcast (hard to see how one ‘broadcasts’ a book… but, tick!); and
d) records of the work had not been offered or exposed for sale to the public (tick!);
the copyright in the work continues to subsist for 70 years from the year in which the first of these events takes place.
So, the fact that Twain’s autobiography has been under ‘lock and key’ since it was written arguably means that the clock will start running this year (i.e. when the work is “first published”).
The only niggling problem is the fact that the section uses the language of copyright in the work “continuing” to subsist. That is, the section contemplates that copyright will already subsist in the work as an unpublished work when it first becomes published, performed, broadcast etc. But, how does this sit with the fact that (as outlined above), in accordance with first principles, copyright in Aussie Mark’s autobiography as an unpublished work would have come to an end in 1980? No copyright is “continuing” to subsist upon first publication. At the time of publication, the work has been out of copyright for 30 years.
Given that Huck and Jim never set out from Mildura to raft the Murray River, the question as to whether section 33(3) of our Act would apply can be the source of academic debate only…