Commentary on Copyright Extension
Who Owns Jane Austen--the Public or
the Descendants of her Brothers?
Summary of March 25, 1996, Wall Street Journal Article
and Comment Letter by Dennis S. Karjala
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On March 25, 1996, the Wall Street Journal published a front page article by Amy Stevens entitled, Poor Jane Austen Didn't Live to See "Sense and Sensibility." The article noted the recent spate of films based on Jane Austen's works and the grousing of some of her distant descendants. (Jane Austen herself died childless, so the grousers are descendants of her four brothers--great, great, great nephews and nieces of the author.) The complaints were of two types: Some just wanted a share of the earnings from recently created works based on the public domain Jane Austen novels. One factory worker, for example, said he had been working at a "dead boring" job for 25 years so it "would be quite nice" to have some income from the newly found popularity of Jane Austen's works. Another said he was pleased with the family connection but would rather be able to buy a Mercedes to replace his old VW. The second group complained about having no control over Jane Austen's "artistic legacy." One claimed to be "depressed" at resiting Emma in a southern California high school, for example. Others were "furious" at some of the risque scenes in the TV miniseries version of Pride and Predjudice. According to another, Persuasion was "perfectly frightful."
On April 18, 1996, the Wall Street Journal published several letters commenting on this article under the heading "Nobody Owns Jane Austen." The following comment from Dennis Karjala was among those published here (reprinted in the James Joyce Quarterly, Vol. 22, No. 4, Summer 1996, at page 651):
Re: The Plight of Jane Austen's Distant Relatives
The page-one article by Amy Stevens on March 25 nicely illustrates the dangers of an ever-longer period of copyright protection. (Congress is now seriously considering legislation to extend this period by another 20 years,) Put aside that the fifth-generation descendants mentioned in the article are not those of Jane Austen herself but rather of her brothers. What moral claim do such distant descendants in any event have to avoid the "dead boring" jobs with which most of the rest of us are saddled by participating in the income generated from current creative uses of Ms. Austen's works? If they had Ms. Austen's or even studio screenwriters' creativity, they could write and profit from their own works.
The article also indicates that some of these relatives are appalled by what they regard as distortions of Ms. Austen's artistic legacy. What gives this particular set of some 100 people uniquely apt qualifications to judge whether a use is "good" or "bad"? There are probably hundreds of true students of Ms. Austen's works who understand her artistic legacy much better, and some of whom may be equally appalled; yet no one seriously thinks even a group of knowledgeable scholars should play the role of thought police. The whole point of placing works in the public domain after authors have had a reasonable chance to profit from their works is to allow everyone the opportunity to use them as the basis for new works. This maximizes the number of new works that the public can enjoy, and the market decides what is good and bad.
This constant extension of copyright protection is a bad thing, and the perpetual copyright desired by these descendants of Jane Austen is the ultimate black whole into which our cultural legacy will fall if we continue down this road. We must remember that for every Jane Austen novel that remains popular, there are thousands or even tens of thousands of other works whose economic value has long been nil--at least until another creative artist comes along and sees a potential new use. Most old works are of interest only to scholars, historians, biographers, archivists, and librarians. Work in these fields can grind to a halt if current authors have to negotiate with hundreds of descendants every time they wish to make use of an old work.
Dennis S. Karjala
Professor of Law
Arizona State University