SBM at the Press

About letters and duchesses and copyright.

• April , 2019
• Gustavo A. A. Sena

During February, print media of several sorts, such as Cosmopolitan, El Pais or The Sun, (1), gave accounts of the discontent of the Duchess of Sussex, Meghan Markle, for the publication made by the newspaper Mail on Sunday with different excerpts of the five pages handwritten letter she sent to her father.

Discontent that became anger and that cause the Royal House and the Duchess to analyze with their attorneys what actions should be taken against the newspaper.

Certainly, Meghan Markle's letter is -for the English law- an intellectual right over which the Duchess has rights, with everything that implies, the right to prevent others from publishing it -either in part or completely- without her authorization.

On this subject, the Argentine law provides for that the writings of any nature and extension, among which we can mention letters, are comprised withing the protected works, thus, initially they cannot be published without having obtained the relevant authorization.

Accordingly, it establishes that the right to publish the letters belongs to the author. Being the author of the letter deceased, the consent from his or her spouse and children or their direct descendants is required, or in their absence, the consent of his or her parent. If there were no spouse, children, living parent or direct descendants of the children, the publication would be free.

The consent for the publication of the letter will no longer be necessary after 20 years has passes since the death of the author of the letter.

Copyright protection is supplemented with the protection of the criminal law, that classifies several criminal behaviors related to private mail. One of them is related to the action under analysis, that is classified in section 155, which provides for a sanction with a fine to whoever having correspondence in their possession that is not destined for disclosure would unduly publish it either completely or partially and that fact caused or could cause damage to others.

"Unduly", that is without authorization from the author of the letter or a person duly authorized by the latter, or with a legitimate cause justifying that disclosure. Furthermore, the norm provides for that he who published a letter with the unequivocal purpose of protecting the public interest would not be criminally liable.

Now, coming back to the father of the Duchess, he said that he published the letter because he felt upset with what friends of his daughter had said to graphic media and that would be disproved by her letter.

It is clear that the letter cannot be published without the authorization of its author but, in certain circumstances, the publication could be done freely and without committing any criminal offense.

And such circumstances may vary according to the legislation in each country.

 

Gustavo A A Sena

gsena@sbm.com.ar

Click here:

SENA & BERTON MORENO was founded in 1937 by ALFREDO SENA and ERNESTO E. BERTON MORENO as a Patent and Trademarks Agency with a stable staff of only four people. Since then, the Firm has grown to reach its current size of forty people, working at our offices located only two blocks away from the Government House and at the heart of the commercial and financial district of the city. Ver más