Barbara Cooke, C0-Executive Editor of the Complete Works of Evelyn Waugh has posted an article on the University of Leicester Waugh and Words staffblog explaining how the lawsuit brought by Meghan Markle against the Daily Mail may affect scholarly literary projects. Markle claims in her complaint that the Mail has breached her copyright by publishing the contents of her letter to her father without her permission:
…Anyone working on collected letters, or biography, can understand this: under UK law, as it’s currently applied, Meghan would have to be dead for seventy years before anything she wrote in a private capacity could be published without the express permission of her estate. It’s the same law for everyone, rich or poor, artists and accountants. It causes numerous headaches for the likes of us. On the Complete Works of Evelyn Waugh we are lucky enough to work closely with the Waugh estate. Evelyn’s grandson, Alexander, is our General Editor and is working on his grandfather’s letters himself. We can quote as much as we like from any of Waugh’s words across the edition. But this is a rare privilege, and it doesn’t extend to letters Waugh received. While he, like Thomas Markle, might have owned the physical paper and ink of a letter, its contents remain the copyright of whoever wrote the letter.
Dr Cooke goes on to describe the difficulties of obtaining consents from often remote relatives for publishing the contents of letters to Waugh. She continues:
… the Mail claim it’s ok to publish the letter because it is not ‘an original literary work’ but a simple recounting of known facts. This biographer at least was not aware of such a difference in law. As I understood it, copyright in private letters applies equally to shopping lists and drafts of major works (though the penalty for beaching copyright might vary in each case). […]
Practically speaking, a ruling in favour of the Mail would work for or against projects like ours. The misfortune of private letter collectors, whose lovingly (or cynically) acquired caches would plunge in value overnight, could be our gain. […] The only problem is – who would bother to buy our editions, born of years of careful research, if the juiciest bits (strictly non-literary of course) were freely available? And those auction houses and collectors may, in the end, guard their collections even more closely, if the only thing stopping us from publishing their contents is our inability to get close to the words on the page in the first place. That would be a huge loss to scholarship.
This latter concern about the commercial value of published letters is probably a bit overstated. The Collected Works also contains a considerable apparatus identifying persons mentioned, the context in which the letters were written and how they related to the writer’s work which would be unavailable from an internet search or visit to the auction house or library where they reside. The collected letters of D H Lawrence were published (as I recall) in his complete works after the copyright had expired. This would also have applied to letters received by him that may have also been reproduced or referred to.