The exclusive right to publish. Finders Keepers legal commentary.

Under the Copyright Act, authors (or first owners) of a literary work have the exclusive right to publish the work, or any substantial part thereof.   


The Berne Convention on Copyright (which has 93 countries as members including the U.S., China, Japan, Canada and the EU) provides that authors of literary works shall have the exclusive right of authorizing their work to be made available to the public through sale or transfer of ownership.  It is, however, permissible for member countries to create exceptions once the author has first published the work.


But the concept, almost universally where copyright is recognized, is that an author has the exclusive right of publication of his or her work. 


This gives an author the right to claim infringement, and therefore sue for compensation if someone else publishes work they have created.  It's a right that makes sure that authors are compensated for their creations, and that someone else can't steal and print their work and receive all the financial rewards.


But what of the corollary?  Because the author has the exclusive right to publish the work, it must also mean that the author has the right to choose not to publish a work.  If an author wrote works while a juvenile, or political position papers or rough drafts, the author would have the right to restrain anyone from publishing those works.  Most authors would probably support that position.


In Finders Keepers by Stephen King, someone finds new work by an author after the author has been dead for about thirty years.  In the book it's viewed (potentially) as a collector's treasure; the notebooks that can be sold for millions.  That aspect is correct, from a copyright standpoint.  But the idea that those books could be turned into movies, or published and distributed, would be an infringement of the author's copyright, which continues for 75 years following the author's death.


In the context of the novel, the author is one of the great American writers, not dissimilar from J.D. Salinger.  By his choice, he elected not to share his works with the world.  Is that intended as a right the author has?  Beyond merely the question of who should receive the remuneration for the publication of work, should a writer be able to withhold his work from the world from beyond the grave?


Agatha Christie left instructions for Sleeping Murder to be published after her death.  (Curtain had similar instructions, but apparently Dame Agatha authorized its publication while still living). Robert Jordan left detailed instructions for the publication of the final volume(s) of his Wheel of Time series following his death, as well as the completion of the series by Brendon Sanderson.  It is a bit unclear how much of the final volumes appropriately identify Robert Jordan as the author, but it seems generally agreed he wrote particular scenes which appear in the final novels.


So authors can, and do, control and authorize publication from beyond the grave.  As indicated above, I think most people would accept the proposition that an author can control their work while alive, including restricting it from publication.  The idea that an author should be able to entirely destroy their work is a bit harder to swallow if you're a fan, but would be almost impossible to regulate by law.


Should the restriction on the right to publish continue after death though?  If someone discovers works of the author, shouldn't they be entitled to publication?  I acknowledge the estate should still reap the financial benefits, but is it up to the estate to determine whether or not the author would have wanted the work published at all?  And should the estate be entitled to destroy the work if they deem it unsuitable?


What if Christopher Tolkien determined that The Silmarillion should not be published at all, but should be destroyed instead?  Some of the richness and wonder of Middle Earth might be lost to us. 


Finders Keepers, in avoiding any discussion of the author's estate, sidesteps the question a bit, and its ending ignores potential claims by the estate for infringement.  But I think it raises an interesting question as to which copyright rights should survive after death, and whether the estate should have the sole right to determine which works are fit for publication, which authors will "complete" the work, the extent to which they disclose what is original and what is added, or which works will never be seen by the public.


With a copyright term that extends 75 years beyond the death of the creator, I think it's worth asking the question whether that term after death should be solely to provide compensation to three generations of heirs, or whether that term is intended to give the third generation rights to control the use and distribution of work created by the author.