Those nice folks at the Literary Review have kindly given me permission to publish their thoughtful editorial by Andrew Lycett from the December 07 January 08 issue.
I reckon this should be compulsory reading for everyone involved in the book publishing industry but particularly biographers, publishers, literary agents, and literary executors.

PERMISSION GRANTED
Andrew Lycett writing in the Literary Review.

Quoting is not all it’s cracked up to be. As a biographer, I’ve tended to make a fetish of the ipsissima verba. How better to get the authentic voice of a character than through his or her own words?
But after writing my recent life of Arthur Conan Doyle, I’m not so sure. Having been denied permission to quote significant amounts of his own words which happened to be under copyright, I had to go back through my text and paraphrase – all this at the eleventh hour when other pieces of revision were more pressing.
The business of ‘getting permissions’ is one of the most tedious and nerve-wracking aspects of biography. Just when you’ve finished your book and should be elated, you have to sit down, identify which passages are in copyright, and approach their owners – who are under no obligation to grant you anything and can theoretically charge you any fee they want. You feel as vulnerable as a cyclist negotiating the traffic at Hyde Park Corner.
Despite sleepless nights, my experience in retrospect was not too bad, even if I railed against such decisions as not allowing me to quote copyright material even when it had appeared in previous lives.
There were special circumstances – the Conan Doyle archive had recently emerged from the vaults and the estate was preparing its own volume of letters for publication. In its desire to keep material for its own use, it acted no differently from several biographers I know who are custodians of estates. In the end, I was allowed to quote enough of what I wanted. And for that, I was almost pathetically grateful.

Others have had it much worse. Peter Ackroyd was refused permission to quote any copyright material in his life of T S Eliot. He was, as he put it, reduced to ‘paraphrasing the paraphrase’, which he turned into a positive feature, even a triumph. And, after being prevented from quoting original manuscript material in her biography of James Joyce’s schizophrenic daughter, Lucia, the American academic Carol Shloss obtained a federal court judgment allowing her to proceed on the grounds of ‘fair use’ and freedom of expression.
The Joyce estate is particularly restrictive. It once threatened to disrupt a major exhibition in Dublin, claiming that the manuscripts and notebooks on show were copyright. The Irish government hurriedly had to pass a bill allowing this important cultural event to proceed.

But does it have to be like this? No one denies that dead writers need protection. But must this last for seventy years after their demise? And cannot something be done to iron out the anomalies? In Britain, for example, unpublished material remains in copyright for seventy years after it was first printed. In the United States, it is regarded like published material and protected for seventy years after the death of its author – an important difference.
Thus the unpublished works of Conan Doyle, who died in 1930, are in the public domain in North America, but not in Britain. Having had to paraphrase certain passages in the British edition, I could have reinserted them in the American. But by then it somehow did not seem to matter.
Pontificating is not easy where so many interests collide. Estates have used permissions to favour an established biographer whose ‘definitive life’ might enhance its subject’s reputation. Publishers argue that the seventy-year rule allows them to keep a dead author in print and invest in critical editions. But this can work the other way: an inferior text becomes the norm at the expense of others.

All this should be seen in the context of rapid changes in intellectual property as major corporations struggle to keep up with technology. In the music business, where BitTorrent file sharing is rife, elderly crooners worried about their pensions lobby for extended protection of ephemeral pop songs. When Hollywood became worried that lucrative film franchises were reaching the end of their copyright lives, Congressman Sonny Bono stepped up to introduce the legislation popularly known as the Mickey Mouse Copyright Extension Act.
In this environment the author – and certainly the biographer – has lowly status. So I’d like to make a couple of suggestions. The first is that the term for written copyright should be reduced to forty years. This would allow widows and children to benefit from works, but not succeeding generations or professional copyright holders. Authors do not write to provide for their grandchildren, but to tell stories, explore ideas and communicate. Often the effect of copyright legislation runs counter to these ends, offering too much protection at the expense of free speech. Our literary culture is part of our heritage and needs exploring and reinterpreting as often as possible.

I’d also like to see the administration of copyrights vested in an independent agency. If I want to use a snatch of music by Frank Sinatra or the Beatles, I apply to the Performing Right Society (or similar), which charges me an accepted rate. In the literary field, this process could be done by the Society of Authors or even an established literary agency. In writing two previous biographies, I was impressed by the professionalism with which two different agencies dealt with requests for permission on behalf of their clients, the estates of dead authors.
My best (if obvious) advice is that a biographer should sort out these technicalities with the copyright holder in advance. If you don’t know whom to approach, check the Watch File administered jointly by the universities of Texas and Reading. It’s certainly a three-pipe problem, but anything to guard against those sleepless nights.