29 October 2005


A little trip this morning into the fields of literary theory… with implications for copyright law. Consider this passage:

Contrary to what most people assume, a novelist's politics have nothing to do with the societies, parties and groups to which he might belong — or his dedication to any political cause. A novelist's politics rise from his imagination, from his ability to imagine himself as someone else. This power makes him not just a person who explores the human realities that have never been voiced before — it makes him the spokesman for those who cannot speak for themselves, whose anger is never heard, and whose words are suppressed. A novelist may (like me) have no real reason to take an interest in politics as a young man, or if he does, his motives may end up mattering very little. Today we do not read the greatest political novel of all time, Dostoevsky's The Devils, as the author originally intended — as a polemic attacking Russian westernisers and nihilists; we read it instead as a novel that reflects the Russia of its day, that reveals to us the great secret locked inside the Slavic soul. This is a secret that only a novel can explore. Obviously, we cannot hope to come to grips with themes this deep merely by reading newspapers and magazines, or by watching television. To understand what is unique about the histories of other nations and other peoples, to share in unique lives that trouble and shake us, terrifying us with their depths, and shocking us with their simplicity — these are truths we can glean only from the careful, patient reading of great novels.

Orhan Pamuk (trans. Maureen Freely), "As Others See Us," Guardian (29 Oct 2005) (typography corrected).

As difficult as it may be, let's leave aside (for the moment) the author's identity and own political situation. Consider this statement in the context of the (several) ongoing lawsuits against Dan Brown's wretched Da Vinci Code1 alleging copyright infringement—most particularly the pending trial in the UK. The Baigent & Leigh matter is of interest for several reasons. It asserts a "sweat of the brow" cause of action (which even the two authors admit—their outrage seems to be at stealing the results of their research, not at improper quotation or stealing invented characters), which should fail… and would be laughed out of court in the US. While Baigent & Leigh may well have a good unfair competition claim,2 I think their copyright claim is extremely weak, particularly in light of Lord Justice Jacob's opinion in Hyperion Records.

So, then, what does this have to do with the long translated quotation? Pamuk's writings all attempt to shed some light on the general through description of the particular. That is the serious novelist's stock in trade. That approach seems to pervade his nonfictional writings, too (at least if we can trust his translator, and she's the same individual who translated the US editions of several of Pamuk's novels). But this is more a matter of expression than of truly original insight; even Pamuk's own prose acknowledges a public-domain source of his musings. Dr Sawkins's translations of de Lalande's music into a format accessible to contemporary musicians (and hence to contemporary listeners) form an intermediate case. Dr Sawkins worked with public-domain material, but provided the services of a translator. Translation is no science; it requires original thought to perform accurately, particularly dealing with works of art. At the opposite extreme, we have Baigent & Another and Random House (UK) & Others in which factual material has been put into an (allegedly) more-accessible format. The irony here should be obvious. Baigent & Leigh are claiming that their purportedly nonfictional work is original enough that something much less than literal copying is improperly taking original elements; in essence, that their book is more like The Devils than, say, Utopia in Power. That is, it is more like fiction than fact. What that says about their confidence in their own work is more the story than what it says about what one can glean only from the careful, patient reading of the sales figures of not-very-great-at-all novels.

  1. Which is proof, as if we needed more, that Mencken was an optimist.
  2. Perhaps the best result would be a reverse passing off action, in that Brown's work is being passed off (incorrectly and deceptively) as a novel.