(by Peter Hirtle)
A number of people have been commenting on the copyright status of Mark Twain’s Autobiography, which was recently published by the University of California Press and has become a best-seller. Elizabeth Townsend Gard has a post on it, and an article in the National Law Journal by Sheri Qualters entitled “A creative approach to preserving copyright for Twain autobiography” has been getting cited and reprinted in a number of venues.
I told the story of Mark Twain’s copyrights on page 44 of Copyright & Cultural Institutions (https://hdl.handle.net/1813/14142) - though I did not speak specifically to Twain's autobiography. At the heart of the story is the fact that Berkeley offered for sale in 2001 a microfilm set that apparently contained the Autobiography. I can’t see that anyone actually bought the microfilm set, but by offering it for sale, California extended the copyright on the manuscript until 2047.
A few observations:
1. I have often wondered if the Mark Twain Papers Project actually produced the microfilm, or if it would have done so if anyone had ordered a copy. I see, however, that the UC library appears to own a copy. This suggests to me that the Twain manuscripts were "published" in 2001, as the Foundation and the UC Press maintains.
2. On the flip side, the statement on the UC press cite that it is "proud to offer for the first time Mark Twain's uncensored autobiography in its entirety and exactly as he left it" must be wrong. If it were true, then there would be no copyright in the autobiography. It seems that marketing hype is more important than editorial precision.
3. While the Autobiography manuscript may have been the property of the Foundation or the Bancroft Library, the Papers project also has copies of Twain letters and manuscripts that it received from other repositories. They have never said what was included in the microfilm editions of Twain’s works, but my guess is that they also "published" unpublished letters and manuscripts that are owned by other repositories.
It is an interesting question whether California had permission to do this. The letter soliciting copies of Twain materials (an example of which is displayed at the 45 minute mark in Robert Hirst's talk at https://www.cornell.edu/video/?videoID=776) announces the project was "preparing for publication by the University of California Press a complete series of Mark Twain's writings." The letter concludes "We will of course honor any restrictions you must place on the material and will ask your permission before publication if your prefer not to give it at this time."
I find two things interesting about this letter. First, it is an open question as to what is the scope of the publication permissions granted. Certainly, it would appear that a repository that sent Berkeley an unrestricted copy of a Twain letter was giving permission to have the letter published in a letterpress edition by the UC Press. Whether this permission would extend to a microfilm or electronic version is debatable. (It reminds me a bit of the Random House v. Rosetta Books case, which hinged on the question of whether "book" publication extended to electronic editions of a text. It apparently did not.)
Second, there is no indication in the letter that by supplying a copy of a letter to Berkeley, a repository might be increasing the restrictions on its holdings. Of course, in 1967, when this letter was sent, unpublished material had perpetual copyright; publication by the UC Press would actually help repositories by eventually inserting the unpublished item into the public domain (albeit 95 years after first publication). With the change in the 1978 Copyright Act, however, which brought unpublished items under statutory protection, publication by the UC Press would work against the owning repository's interests by extending copyright in unpublished items that otherwise would have expired in 2003. I do not know if the Twain Papers contacted the owning repositories to seek permission to publish the items of which it had been given copies, but I think it should have. The change in copyright law would seem to have demanded a new set of permissions.
Of course, part of the blame must fall on the owning repositories as well. It makes little sense to require "permission to publish" if one does nothing when someone violates the scope of that permission. It is one more reason why libraries should get out of the permission business, except for those rare instances when they actually own the copyright in a work.
Incidentally, I don't think that the failure of the Mark Twain Papers project to secure the permission of the owning repository before publishing the microfilm edition of Twain documents would affect the copyright status of the copied manuscripts. They would still have been published with the authority of the copyright owner, which is all that is required to establish statutory copyright.