If a lost diary of the most famous poet who ever lived were discovered today, without any mention regarding his intention to publish it, would it be right for the manuscript to reach the readers’ shelves by decision of an organ?
Many of the books that mankind now calls “masterpieces” were published posthumously, but few are those who consider whether the author would have approved for the whole world to gain access to them.
Franz Kafka left his work, both published and unpublished, to his friend Max Brod. On his deathbed, Kafka gave explicit instructions for him to destroy it all: “Dearest Max, my last request: Everything I leave behind me … in the way of diaries, manuscripts, letters (my own and others’), sketches, and so on, [is] to be burned unread.”. Betraying Kafka’s last wishes, his friend managed to publish “The Trial”, which became one of the author’s most widely read books. In a similar way, Mihai Eminescu’s letters to Veronica Micle, Emil Cioran’s love writings to a young philosophy teacher from Germany, along with many others, appeared on bookstore shelves.
In the field of Intellectual Property law, authors of creative works, as well as their own works, are protected by what is called copyright. Copyright is an umbrella term that includes both moral rights and patrimonial rights. In the context of posthumous publication, the right to disclosure, as a moral right, is of particular interest.
What is disclosure?
The Romanian Law counts the right to disclosure the intellectual work as one of the moral copyrights, along with the withdrawal of the work, the inviolability of a work, etc. and it defines it as the right to decide whether, how and when the work will be disclosed to the public. The phrase “communication to the public” is defined by art. 20 para. (1) of Law on Copyright and Neighboring Rights (No. 8 of March 14, 1996) (this including recitation or stage performance).
A distinction must be made between the exercise of the right to disclosure and the actual disclosure of the work of art. The right to disclosure is exercised when the decision to make the work public is made, while the disclosure itself takes place when the artwork is made public, and may be made by a third party.
Can the right to disclosure be bequeathed?
The exercise of the right to disclosure (and not the right itself) can be bequeathed, since 2004, to an individual or organization, for an indefinite period of time. In the absence of heirs, it is taken over by the “collective administration body that administered the copyright” or by the “body with the largest number of members, in the particular creative field”, according to art. 1 para. (7) of Law amending and supplementing Law on Copyright and Neighboring Rights (No. 285/ 2004).
Posthumous works can be disclosed under one of these conditions:
- If the author intended to disclose them without success or if they left explicit instructions to the heirs in order to make them public
- If the heirs decide to disclose it
What are the sanctions?
In the case of public communication without the consent of the holder of the right to disclosure, the deed constitutes a contravention, and the fine is between 3,000 and 30,000 RON, according to the Law on Copyright and Neighboring Rights (No. 8 of March 14, 1996).
Legal Intern R&R Partners
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