Is There a Moral Obligation to Publish?
posted by Bruce Boyden
In the last couple of weeks NPR and Slate have reported on Vladimir Nabokov’s last, unpublished novel, which is written on index cards that are in the hands of his son, Dmitri. However, Vladimir’s dying request was not that the novel be published, but rather that it be destroyed.
This presents Dmitri with a bit of a dilemma: honoring his father’s request may mean destroying a novel that the world might love to read. Does he have any obligation not to destroy the novel? If not, then the decision should be an easy one. Presumably he has some sort of obligation to abide by his father’s wishes. If there’s no countervailing duty, then his decision is clear.
The question interests me because one prevalent, albeit self-serving, argument for making infringing music, e-book, or other downloads is that the publishers are making it too hard to get legitimate copies. In other words, the publishers have a duty to publish as widely as possible; having violated that duty, the countervailing duty not to infringe is partially offset. The nonpublishing owner has “unclean hands,” as it were, in any infringement case.
I’m skeptical that there is such a duty, but it is situations like Dmitri Nabokov’s that give me pause.
Surely there are moral considerations counter-balancing the obligation to abide by his father’s request. Part of that may come from the fact that Nabokov is an accomplished novelist. A very similar dilemma faced Franz Kafka’s friend Max Brod. Kafka had left instructions that his unfinished work — including The Trial, The Castle, and Amerika — be destroyed after he died. Brod ignored the instructions, and the publications of Kafka’s novels cemented his reputation. Given what we now know, it’s hard to criticize Brod’s decision.
That doesn’t necessarily indicate the existence of a duty to publish. It could be that there merely are, in certain circumstances, exceptions to the duty to fulfill a promise or request, such as when circumstances have changed. Such exceptions might indicate that it is morally permissible to publish, but not obligatory in any sense.
But I think the Kafka and Nabokov cases illustrate more than that. I don’t think it’s the case that someone finding such a work in their possession, and having no instructions at all about what to do, is entirely free (in a moral, not legal, sense) to do anything they want with it. I think, absent the instructions in question, someone who destroyed an undiscovered work of a master could justly be criticized for that actions. So it does seem that in certain circumstances, there is a duty to publish.
Yet it’s not clear what the contours of such a duty might be. Does an author who is still alive have a duty to write? Despite what law school deans might wish, it doesn’t seem that the duty goes that far, although such a duty would justify the anger sometimes felt at someone who is “wasting their talent.” Is a duty to publish part of a general duty to make creative expression as widely available as possible? For example, does a private art collector have a duty to make the art available for public display?
It seems the answer in all of these cases — the executors of novelists’ estates, the private art collector, and perhaps the record labels — depends on the quality and popularity of the work. If Nabokov’s last novel is Jackie Collins-type trash, then the case against fulfilling Vladimir’s last wishes seems much less compelling (indeed, Vladimir’s request would seem entirely sensible). Max Brod’s decision seems correct only because we know how it turned out. A private collector who was hording the only copy of some long-lost Van Gogh masterpiece might justifiably find protesters outside his or her house. If a record label had the next White Album locked in its vault, it might be in a similar situation.
All of these decisions are binary. The question is either to publish or not to publish. But that’s not quite enough help to the downloaders. For the downloaders to find a violation of a duty to publish, it has to be the case that the duty requires not simply publication of the work in question, but publication in the most convenient manner. After all, the music free downloaders seek has all been published — on CD. It can be obtained with a simple Amazon purchase — the listener need not even leave his or her house. Is there a duty not simply to publish, but publish widely and in the most convenient forums?
I think the answer to that has to be “no” in most circumstances. Whatever duty Max Brod or Dmitri Nabokov might have, it seems to me to be a weak duty, one that is fulfilled by simply making the work available, and does not require that, e.g., everyone gets a free copy of The Trial. A stronger duty might also require creation of inchoate works — after all, an inchoate work is simply a work that is only available in one person’s mind, and a strong duty to publish might overcome the liberty interest an author has to decide what to do with his or her time. But if there’s only a weak duty, I think it is clear record labels and similar publishers meet it for any work that has been published in some form. The “unclean hands” argument ultimately fails.
January 28, 2008 at 12:24 pm
Posted in: Culture, Intellectual Property
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Responses (1)
l. k. Richard - January 28, 2008 at 3:57 pm
It was great what Radiohead did with their last album. . . the future of intellectual property law is in the property portion. By creating (music, novels, art, etc.) a person is making the already-existing, intangible property in their head into something the rest of us can see. There should then be a (somewhat) fine line between when the owner decides to part with it for profit.
Someone who is more intimate with the Nabokov case would likely be able to determine if his wish was an attempt to keep his property private (re-render it intangible) or not. Odds are that he wanted it published, or he would have burned it himself, like Gogol did.
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