Nabokov Suit Accents Copyright Woes
Published: November 14, 2003 (Issue # 919)
Alexander Belenky / The St. Petersburg Times
The Nabokov Estate in Russia has filed a suit against Nezavisimaya Gazeta for publishing several texts by Vladimir Nabokov without permission and defaming the author's name.
The publication in question is "Nabokov About Nabokov Etc.: Interviews, Reviews and Essays," printed in Russian by the Nezavisimaya Gazeta publishing house in 2002.
Olga Voronina, official representative of the Nabokov estate in Russia, says that the book is actually a reprint of Vladimir Nabokov's English-language "Strong Opinions," a collection of letters, interviews and essays, first published in 1973 in the United States, for which Nezavisimaya Gazeta had not received permission.
"They didn't even apply for permission," Voronina said. "Although there were some cuts and some additions, the book is clearly a reprint."
The case was filed in Moscow's Basmanny Court on Tuesday, near the registered office of Nezavisimaya Gazeta, which had no comment on the dispute.
However, Anna Raiskaya, managing editor of the publishing department of Nezavisimaya Gazeta, was quoted by Delovoi Peterburg newspaper this week as saying the publisher had done nothing wrong.
"All the materials, including illustrations, come from magazines and newspapers," she was quoted as saying. "Furthermore, our contract with Nikolai Melnikov, who compiled the book and wrote the introduction, says that he bears all responsibility for it."
Nabokov, considered one of the greatest writers of the 20th century in any language, was born into a well-off St. Petersburg family and fled Russia after the Bolshevik Revolution. He spent years in Europe before taking up a career as a teacher in the United States. He spent the last years of his life in Montreux, Switzerland, dying in 1977.
Nabokov's most famous work is "Lolita," the tale of a man's attraction to preadolescent girl.
His son, Dmitry, is in charge of the author's literary and financial heritage. The estate's representative in Russia takes care of his affairs in this country; Dmitry decided that the proceeds from Russian sales of Nabokov's books should be donated to the city's Nabokov museum.
Vadim Uskov, head of St. Petersburg law firm Uskov and Partners, said that although the book was published last year, his company had been trying to settle the dispute out of court.
"When we first approached the publishers, most of the 6,000 copies of the book hadn't been sold," he said. "What we wanted was to terminate distribution and get them to pay royalties."
No reaction followed, most of the copies the edition have since sold, and now the lawyers are demanding $24,000.
Uskov said this figure was generated by a formula in accordance with a law that takes into account the sale price and number of books sold. No additional sum is being sought for the alleged defamation.
If received, the $24,000 will go directly to the Nabokov Museum in St. Petersburg to be spent on its development.
"We are not doing this for the money," Uskov said.
Melnikov entitled his foreword to the book "A Performance With Unmasking."
The Nabokov Estate said the style and content of the foreword is a groundless defamation and an attempt to blacken the writer's reputation.
The following quote from Melnikov's foreward was one of several cases in point: "Currently, almost all of them [English-language works by Nabokov] have survived a rebirth, and having thawed out, perform their arias in another language: some of them voiced and distinctive, some harder-of-hearing and colorless, sinning with clumsy claques and tasteless Americanisms, going astray to the falsetto of tactless ad-libbing worthless except for, at best, some condescending sympathy."
There are a dozen quotes similar to this one in tone and interpretation in the foreword.
Uskov, a graduate of St. Petersburg State University, quoted his former law professor.
"He gave us five rules to follow and to explain our clients: 1. Don't think ill of other people. 2 If you do, then don't talk about it. 3. If you do the above, then don't write about it. 4. If you do the above, don't sign it. 5 If you have done all this and signed it, don't be surprised.
"Our actions are intended to be our contribution to creating a legal basis for copyright law in this country."
The copyright law adopted in 1993 is considered fairly comprehensive by both Russian and foreign experts. The country joined the international Berne Convention on copyright in 1994, while the Soviet Union adopted the Geneva World Convention on copyright in 1973.
But for the well over two decades since then, the outside world has been convinced that copyright does not exist in Russia, calling the country a black hole with respect to intellectual property.
Under the law, authors' rights are to be protected during authors' lives and 50 years after their deaths.
So Dmitry Nabokov theoretically shouldn't have had any trouble getting royalties and providing control over the literary element of his father's books in Russia. But in reality, only one of Vladimir Nabokov's books - "Look at the Harlequins!" printed in 1974 - is actually protected by the law.
The key to this paradox is an amendment that the Soviet Union made when adopting the Geneva Convention. The country declared the convention non-retrospective.
In other words, all material created by foreign authors before May 27, 1973 (when the U.S.S.R. signed the convention) aren't subject to the copyright law. The decision has since been causing much tension between the country and the rest of the world.
St. Petersburg copyright lawyer Lyudmila Svetlitsa said that when signing the Berne Convention, Russia made an amendment stipulating that works that had already become "public property" are not subject to the copyright law. This includes not only works on which copyright had expired, but also works that never had copyright protection in Russia.
The amendment contradicts the Berne Convention, Svetlitsa said.
"According to article 30 of the Berne Convention, the country can make no amendments to the convention expect in cases specified in the convention," she said. "The amendment made by Russia also contradicts its own federal law on international agreements."
After Vladimir Nabokov's books were allowed to be printed in early perestroika, his novels were published by multiple private publishing houses - with no permission from the Nabokov estate and subject to poor translation, with some important passages of novels entirely absent.
It was for this reason that Dmitry Nabokov would not visit Russia until the mid-1990s.
"What was particularly distressing was not just the financial part - millions of copies of my father's novels have been printed illegally - but that there was little control over the literary part," Dmitry Nabokov said last year in an interview.
Voronina said that the widespread practice of Russian publishers and users of intellectual property using the Russian law to avoid paying for intellectual property and authors' rights annoys Western copyright lawyers enormously.
"What is happening now is that Russian publishers who are concerned about their image in the West, who go to international book fairs and who communicate with their Western counterparts try to follow international rules of copyright protection and pay for use of international authors' work, even if the work was created before 1973," Voronina said.
These publishers make gestures of goodwill by contacting agents or representatives of authors' estates abroad in order to keep up their image in the West. And, as Voronina believes, the wealthier and more established publishers in Russia get, the more they will be interested in keeping up good relationships with authors' estates and foreign agents.
Russian publishers have recently began to realize the impact on the country's image that observation of copyright law has.
A sociological survey conducted in fall 2000 by Gallup St. Petersburg on copyright awareness among local culture managers, publishers and electronic publishers indicates that 79 percent of them agree that violations of copyright in their businesses cause damage to the international image of Russia.
87 percent believe that as the situation of this matter improves, it will improve the country's image.
As Svetlitsa points out, if Russia is serious in its intention to join the World Trade Organization, the country's copyright legislation must not contradict international laws.
"I hope the situation will change when Russia enters the World Trade Organization, because one of the terms for the country to join WTO is that Russia must change its legal system in accordance with international laws, which means the amendment contradicting the Berne Convention will have to be removed," Svetlitsa said.
But, Voronina said the problem of efficient monitoring of copyright, which is already causing trouble, might increase, and it is going to be very difficult for Russian law enforcement authorities to monitor production of CDs or any other materials in Russia.
"Our publishers sometimes buy exclusive rights to print 2,000 copies of a certain author, and if they decide to be dishonest and publish another 2,000 or 20,000 copies, it is very hard for the authors' representatives to control violations of copyright," Voronina said.
With the wave of perestroika, a slew of new publishing houses mushroomed around the country, printing once-forbidden Western literature with disregard not only to paying royalties but also to textual quality. Numerous publishing companies surfaced - only to disappear after printing a couple of books.
"It often was a result of mere ignorance," said Dmitry Nabokov. "Publishers simply weren't aware of the standards that exist to protect authors' rights, with the result often being very sad for the writers.
"Many of them [the early post-Soviet publishers] have long been gone but I hope that those who come later will be able to live and create in a fair, healthy environment."
With the publishing market stabilizing, quality publishing houses are showing more concern about their international reputation. Still, relations between authors and publishers within modern Russia are often described as unfair or even illegal.
Natalya Lokhova is deputy director of the northwestern department of the Russian Authors' Society, a national state-run organization monitoring and managing authors' rights.
Though the situation of copyright in publishing has recently improved, the success is only relative, as achievements have been overshadowed by the blatant violations of copyright law occurring in the entertainment business.
"Back in Soviet times there was only one standard contract between the author and the publisher," Lokhova said. "Now the contracts vary in form, and the freedom is causing problems. When offering a contract, publishers pursue entirely their own interests, while authors are often careless about significant details."
The experts agree that the problem with Russian copyright law is that it only exists on paper and in practice is frequently treated with disregard or altogether ignored. Among the main reasons behind the disregard, lawyers name criminal organizations, economic uncertainty and public ignorance.
"The law is consistent and it passed a UNESCO review," Lokhova said. The problem is that this law is of a very declarative character, with procedures of enforcing the law vague or simply missing."
In such a situation, the role of lawyers is increasing. But copyright lawyers are hard to find in Russia.
Svetlitsa said one of the main reasons for this is that copyright awareness in Russia is still in an embryonic stage, with authors rarely seeking legal support, which has forced strong lawyers to switch their attention to other spheres.
"Additionally, cases involving copyright issues have been considered some of the most difficult, owing to novelty of copyright legislation in Russia and the lack of legal experience in the field," Svetlitsa said.
The solution, Svetlitsa believes, is for intellectual property issues to become a natural part of Russia's social life and not be taken as an alien element.
"The situation is changing now, and with the growing interest in society regarding the enforcement of intellectual property laws, more copyright lawyers will inevitably emerge on the market, and quality of legal services in the field of copyright will improve," she said.