Free Speech and Copyright


In recent months, the importance of freedom of speech has been a recurring riff in international news. Coverage from China, Burma and Zimbabwe has impressed its importance upon us with fresh urgency, as the rights and privileges we consider to be inalienable are overtly infringed by more repressive regimes around the world.

In the current political climate, the rhetoric of ‘freedom of speech’ has a tendency to draw our gaze towards the exotic and frequently heroic struggles of distant nations, however this arguably comes at the cost of a cultural hypermetropia which obscures more nuanced debates closer to home. As Director Jonathan Heawood pointed out in his introduction to English PEN’s discussion on ‘Free Speech and Copyright’, while, in the UK, self-expression does not result in political persecution, ‘subtle and interesting challenges’ have nevertheless been raised on the home ground concerning authors’ freedom of speech – not least the way this can be curtailed through deployment of the very legislation designed to protect them.

Brought together to discuss the issue were biographers Andrew Lycett, biographer of Conan Doyle and Ian Fleming, and Anne Sebba, whose subjects include Laura Ashley and Jennie Churchill, Mark Le Fanu, president of the Society of Authors and chair of the panel, and agent Bruce Hunter – whose description, the night after a gruelling Wimbledon final, as ‘the Nadal of agenting’ drew a gentle ripple of laughter from the audience. The Society of Authors’ lawyer, Nicola Solomon, brought her legal experience of copyright disputes to the table also.

In a brief summary of the current situation, Mark Le Fanu, asserted that, while copyright law is still ‘the rock upon which writers’ lives are built’, a general trend towards longer and more rigorous copyright laws has bedevilled the biographer in recent years – most significantly, the EU’s decision in 1996 to extend the period of copyright from 50 to 70 years after death. While it undoubtedly protected the right of the deceased author, the EU’s decision came at a cost to the living biographers, scholars and historians who had been waiting to work on the precious archives and resources hitherto denied them.

The dilemmas and challenges faced by the author are perhaps particularly acute in the case of biography, where the freedom to speak acquires a highly personal and particular dimension. Biography is in many ways a crucible in which fundamental issues are brought to bear concerning intellectual property, posterity, the nature and extent of authorship, and its complex relationship to authority. The biographer’s task inevitably invites the question of how far a man may be, in Coriolanus’ phrase, the ‘author of himself’ – how much the story of one’s life is one’s own, and who, in the end, has the right to write it – all too often pitting author against author in the bid to have the last word.

Both Lycett and Sebba are veterans of the biographical battleground, well-versed in the potential antagonisms inherent in ‘the business of writing lives’ (Lycett). Lycett’s own career was relatively unproblematic until he embarked on his biography of Arthur Conan Doyle, where a conflict of interests led to a very strained relationship with the author’s estate. In an episode during which he claims he was ‘made acutely aware of where the power lies in the biography business’, he was required to contextualise every reference, with approximately 40% of the 150 quotes he requested permission to use being refused. The cramping resort to paraphrase and quote reduction is a common enough tale among biographers, let alone the webs of intrigue and personal loyalty in which one can become enmeshed; Lycett cited another situation in which his subject’s estate shared an agent with a rival biographer and consequently made access to material substantially harder than expected.

Similarly, while the Enid Bagnold estate let Anne Sebba loose on 60 tea chests of records with nothing more than a ‘right of comment but not of veto’, Sebba had a much less pleasant experience with her biography of Jennie Churchill, for which she was forced to follow 6 years of writing with a period of several months of painstaking revising and rewriting. The sale of the Churchill Papers saga is particularly notorious and caused something of a stir at the time, highlighting many of the key issues surrounding the ‘right to write’. They were bought with a publicly-funded lottery grant of £12.5 million; despite which, the family retained the copyright, divided (unequally) between the 2 heirs. Aware of the sensitive situation, Sebba had several discussions with the head of the Churchill Archives before starting her research, during which it was made clear that short extracts should be perfectly acceptable, especially as the Archives were keen to encourage scholarship through revealing new material. Sebba forged ahead with research and writing, and submitted her manuscript to the estate at final proof stage – only to find that, though one copyright holder quoted a reasonable fee, the other refused permission outright on the grounds that another book was awaiting publication which they wanted to see in print first. Sebba, after extensive editing, cuts and paraphrasing reached an acceptable compromise, and was given copyright permission to publish, although too late to secure lucrative serialisation deals, and with reduced profits due to delayed publication and some enforced cuts to the manuscript. She was also forced to use ‘double-sourcing’ – citing not only the primary sources she had used, but also any instances of previous publication. With this depressing triad of late publication, double-sourcing and cuts, Sebba’s glum conclusion was ‘try your best but assume the worst’.

Nicola Solomon, lawyer for the Society of Authors,  explained that if an author failed to apply for copyright and published regardless, standard practice would be to charge the copyright fee retrospectively, but this could be almost doubled if the infringement was deemed ‘flagrant’, and could even result in the enforced return of every published copy of the book to the estate or copyright holder. 

What emerged over the course of the evening was the way in which the questions raised by biography and copyright engage the fundamental principles and precepts of authorship, and arguably give sway to a rather dated notion of the author as supreme authority on his life which would have Derrida spinning in his grave. As the above examples show, far from signalling the end of his authority, the literal ‘death of the author’ rather multiplies it – devolving the responsibility for reputation on to a host of relatives and representatives whose interests and sensitivities present a minefield for the would-be biographer.

As one such guardian of the flame, Bruce Hunter was invited to give his opinion on the responsibility of the agent to protect and further the interests of the author. According to Hunter, whose clients include the estates of Dylan Thomas and Louis MacNeice, standard contractual terms stipulate that a biographer can publish all previously published work, but that it remains the agent’s duty to exercise judicious control over unpublished material. As the author’s representative, he argued, there are clear reasons for withholding permission ‘sight unseen’, since there is always the danger of uncovering material that may be damaging to both posthumous reputation and to living relatives. Hunter cited Larkin as a writer whose reputation has been badly served by the publication of letters which portrayed him as anti-Semitic and misogynistic, and raised the interesting notion that the agent or representative should consider how the author’s attitudes and idioms may have translated into the modern day. The creation of a hypothetical, ‘updated’ version of the author is an intriguing concept which again muddies the waters in relation to authorship, implicating the agent or editor in the creation of the author as a literary and historical phenomenon. In some sense this is the agent turned image-maker: Hunter’s ‘character forecasting’ equivalent to, if not exceeding, the biographer’s role in the creation of his subject, his hypothesised image of the author in the contemporary setting conferring a measure of immortality by extending his life beyond its natural span.

The current vogue for celebrity biography has also led to significant changes in the field, as biography is increasingly used as another weapon in the arsenal of the image makers. The biographical subject is no longer inert but highly proactive, constantly engaged in shaping and manipulating the persona presented to the public eye. Introducing a legal dimension into the debate, Solomon explained that copyright law has become a tool for image control: what was originally conceived as a means of economic protection has been commandeered by the cult of the celebrity as a means of reputation management, in a field where a financial premium can be placed on anything from actual literary output to ideas and photographic images, to the hazily-calculated worth of a good ‘reputation’. Whereas traditional defamation laws were used to prevent people writing what wasn’t true, new privacy laws are increasingly invoked to prevent what is true entering the public domain; Solomon claims that this is increasingly fostering a ‘culture where free speech is being undermined by people who can pay’, and in which ‘a battery of things are being used very cynically’.

Nevertheless, despite the increasing elision of copyright and privacy laws, the question of literary originality remains at the heart of issues of legal copyright: in the recent case in which Dan Brown was taken to court by the authors of The Holy Blood and the Holy Grail for infringement of copyright on a storyline, Solomon pointed out that they would have had a much stronger case had they argued it on stylistic rather than factual grounds. Copyright is essentially concerned with the individual stamp an author places on his subject – from particularities of literary style to, at its outer limit, a very specific angle or set of theories first articulated by the author. The events of a life alone, or even a particular chronology, are not sufficient to qualify for copyright protection, as a recent film overtly based on a previously published biography serves to show.

Solomon’s assertion that there is undoubtedly an argument for letting ‘someone else put their side of the story,’ identifies a fundamental problem at the heart of biography: that as one person’s life becomes another’s work, his authority in respect to himself inevitably breaks down. It is the same possibility which Wilde acknowledges in his declaration that ‘biography adds to death a new terror’: that, just as with the work, multiple revisions and possible misinterpretations of the life will be made after death over which the author has no control – including those made by the agents and inheritors who have his best interests at heart. The notion of the author as supreme authority in relation to his life simply cannot be sustained after death – the idea of a singular, ‘true’ account of a life is as problematic as a singular ‘true’ account of a book or a sequence of historical events.

Yet biography rarely falls prey to the sort of wholesale revisionism we witness in the literary and historical fields. This is hardly surprising, since ultimately ideologies command less loyalty than individuals, the emotional and personal sensitivities which prevail after death making it significantly harder for the individual to become a subject for disinterested academic study. What is at stake in the case of biography is not the impersonal forces of social and political change, but rather the integrity and identity of a particular person, whose place in both popular and personal memory is heavily reliant on a sense of having been authentically ‘known’. Indeed the issue of the biographer’s personal loyalties was brilliantly touched upon by fellow-biographer Gillian Tindall, present in the audience, who posed the intriguing dilemma of how best to deal with the discovery of potentially damaging material, while balancing one’s loyalties to both self and subject. Describing a titillating scenario in which the biographer uncovers potentially explosive material, Tindall suggested that an elegant solution – preserving both reputations and also pre-empting future charges of academic oversight – would be to pack up the incriminating evidence in an envelope, and mark it ‘I have read this’.

Tindall’s example requires of the biographer a sensitive mediation between disclosure and discretion, and illustrates how the fortunes of biographer and subject are intimately bound up with each other – locked, as they are, in a literary embrace which may make or break them both, and which is deeply concerned with issues of freedom of expression. While it is copyright wars and sinister intrigues which make the news, in the end these are only half of the story: ultimately the most rewarding biographies are those in which subject and biographer speak in unison, mutually granted and granting the freedom of speech.

Report by Lettie Ransley

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