Percey Shelley

“As the dust settles after all the to-ing and fro-ing over Kafka‘s papers,” observes Michael Rosen in a thoughtful report for the Guardian, “it seems a good time to ask some questions about who, exactly, owns literature.” Yes, it’s another provocative moment in our recently intensifying questioning of copyright and the public domain.

Rosen notes that “We can easily envisage an owner owning a manuscript while we collectively own and know the piece of literature it contains. But in the case of the works of Kafka that are lying in those safes, we’re not allowed to do that. Both the manuscripts and the literature are in the possession of the owners.”

And he notes it’s not the first time we’ve confronted the withholding of important works of literature by long-dead writers by document owners:

On July 14, 2006, the Guardian reported that a lost poem of Shelley, Poetical Essay, had turned up, and was now in the possession of a “London bookseller”. “This is a wonderful discovery,” the author of the article wrote. “Few Shelley scholars ever believed the poem would resurface and some even doubted its existence.” ….

We know of at least three people who were able to read the poem: the owner, the seller and Professor Henry R Woudhuysen. He published an article about it in the Times Literary Supplement on July 12, 2006. It’s a fine piece of humane and interested criticism. Notice how it ends:

“The … copy of the ‘Poetical Essay’ is all the more remarkable for its unexpected emergence and for the insights a full study of it will give into Shelley’s development as a poet and political thinker.”

But that full study has yet to take place, as the “London bookseller” sold the poem, and “it has disappeared into an ownership that will not show its face.”

Rosen calls it a scandal, and says it’s equally scandalous that “no one seemed too bothered about it.”

Meanwhile, the recent release of a previously unpublished Mark Twain memoir brought up similar questioning in the comments section of a report on Boing Boing:

I’m not a copyright lawyer or anything, and neither is the writer friend who I asked about this, but my friend said that when a work is newly edited, the edited work is considered a new, copyrightable whole for the purpose of publication.

If true, this would mean that, if you somehow snuck the manuscript out of Berkeley and published it verbatim, that would be in the public domain – but the newly edited edition counts as a whole new, fully-copyright-protected work (probably published by the corporate entity of Berkeley and/or the Clemens estate).

In short, it seems there are ways, after all, to trump public domain.