Katherine Mansfield is New Zealand’s literary icon: feminist, bisexual, incredibly gifted, part of the Bloomsbury circle of clever people pushing literary form before she died of tuberculosis. Her short stories are as moving today as they were when she wrote them almost 100 years ago. Her papers, and those of her husband John Middleton-Murry, are held at the National Library in Wellington as part of more than 50 years of dogged collection by that organisation.
Mansfield died in 1923. Scholars have pored over her papers ever since. The most recent acquisition of KM papers, from the estate of her husband, has surfaced at least one formerly unpublished and unknown work. Beyond stories and essays, the collection has many letters she wrote (and never published).
Under NZ law, her published works returned to the public domain 50 years after her death (1973). Unpublished works return to the public domain 75 years after her death (1998). Unpublished works have always been dealt with unusually by copyright law: before NZ changed its law in 1962, unpublished works essentially had perpetual copyright. Other jurisdictions struggle: in the UK, unpublished works will remain in copyright until at least 2039. (Because … no, I got nothing. I can’t see the reason)
As a New Zealander, I’d like to see the unpublished works of Katherine Mansfield. In fact, if you visit the excellently revamped National Library building in Molesworth St then you can see those unpublished works. Many Kiwis in NZ, and overseas, can’t visit and it would make sense for the library to digitise and put those works online. The National Library digitises a lot of material, has the fantastic Digital New Zealand group in-house, and certainly doesn’t lack the capability to do so. Why haven’t they?
Because putting the works online (or reprinting them in a book) exposes them to significant risk of legal action because of that mismatch between British law and New Zealand law. The British rightsholders (the estate of her husband, who still make royalties from research publications reprinting KM’s unpublished works) could take action if a British resident accessed the online or the print reproductions. (This is analogous to the UK’s known problem with libel tourism) We have no NZ law or trade protections which would let the library do what it clearly should do and wants to do.
This is the microcosm of a larger problem: there is no legal shield for libraries which would encourage them to be pro-active in their digitisation and online distribution. Because of this, there are unpublished works or author unknown works which the library finds it easier and safer simply not to scan (“what if the author pops up and sues us?!”). Many unpublished or author unknown works aren’t of widespread interest, but given the role of the library in protecting and promoting the nation’s literary heritage it seems scandalous to me that KM’s papers will go unseen except by those fortunate enough to visit them physically.
I took photos of the story and letter with my phone: I’m allowed to for personal research purposes. But I can’t publish them on, say, Twitter because then I’d be publishing to British people and could be sued. The answer can’t be to extend NZ’s copyright term to match the UK’s—who would seriously argue that Katherine Mansfield’s papers should remain difficult to access for another 26 years? I hope any future touching of copyright (e.g., due to TPP or other agreements) would resolve this problem and permit libraries to release our heritage online without fear of international reprisals.