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Literary Rights And Wrongs: Who Can Publish A Dead Author's Works?

In Spain and Latin America, debate is raging in the publishing world about whether a dead writer's heirs have the right to publish works, which in life, the author did not want to publish.

Dust it off
Dust it off
Guillermo Schavelzon

BUENOS AIRES - Almost any great author writes much more than he publishes, something that speaks to a certain capacity to chose one work over another. It has much to do with the quality, and quantity, of the work to which the readers have access.

It is – and should be – a natural, literary and moral right of enormous dignity and respect.

Unfortunately the law – and even more, the current application of the law – grants the author’s heirs a much-too-ample margin of decision. And we, as readers, are forced to believe the authenticity of all the works that magically “appeared in an old closet.”

But the heirs are not always very good at deciding whether or not the newly uncovered texts are publishable or not.

The “literary executor,” the person or institution designated by the author to take decisions about his work, does not exist in countries like Argentina. So who to trust when faced with the decision of publishing or not?

There are many cases of publishing posthumously the works of a deceased author, and it is a fact that the decision is usually in the hands of the people who will benefit financially from the decision to publish.

Best intentions all around

There have been cases where the heirs intervene in the text, cutting or modifying the original text. They decide which letters can published and which are not. They take out entire paragraphs. Even if they have good intentions, most often they ruin what the author had originally intended for his work.

The recent controversy arose after the posthumous publication of two unpublished poems by Uruguayan poet Mario Benedetti, who passed away in 2009.

Benedetti had chosen to donate all the books from his personal Madrid library to the University of Alicante, in Spain, which has a center of studies in his name. The librarian in charge of cataloguing his books discovered two unpublished poems between their pages. Without consulting the heirs (the Mario Benedetti foundation in Montevideo), the librarian sent them to the Spanish daily El País, who published them – again, with the best intentions.

Two violations where committed: first, publishing poems which, as many more, Benedetti had discarded and not published in any book, even though it is evident that he continued to work on them, because the same topics and similar paragraphs appear in other poems he did publish. Second, to think that they could publish this as if it were of public domain, without respecting the intellectual property of those who own the rights to the author’s work.

There is another widespread confusion: who owns the manuscript? Is the person or institution who received it from the author or bought it, the physical owner of the work but not the owner of its publishing rights?

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