Copyright and the Inveterate Diarist


I will confess to having kept a diary for many years. What started out as a way to keep track of holidays and so on became a persistent habit that I have been unable to break to this day. It’s not as if I go back and re-read them regularly, but a diary is enormously helpful in settling disputes over where we were, and when, at any given time in the past. Aha. I knew it was 2015 and not 2016 when we saw Aunt Maud. And, of course, it brings back the immediacy of whatever was happening that day. It is sometimes surprising what gets into a diary (an overcooked steak on a barbeque for example) while world events can go sailing by with scarcely a mention. (That is what newspaper archives are for).

The other day I came across an article in my local newspaper titled “Do you know where your diary is?”. The author, a self-described “amateur sleuth”, wrote about a diary museum she had discovered in Italy, the Piccolo Museo del Diario. The author mentions that the Little Library Museum is part of Italy’s National Diary Archive, home to over 10,000 fragments, memoirs, photos and archives. Most are from “ordinary people”, which is the case all over the world. There are some famous diaries that have been published, such as the Diary of Anne Frank, but most diaries remain unpublished, and many are simply a monologue between the diarist and the daily blank page. Diaries can be very personal, revealing confidences, as well as factual on-the-ground reports of what actually happened from the perspective of one observer, or they can deliberately omit unpleasant facts and rewrite events of the day to suit the fancies of the diarist. Most are not intended to see the light of day, but what happens when you move on? Will someone else read them? Will that person decide to publish them, or excerpts of them? What if they are publicly displayed in a museum, like the Piccolo Museo del Diario? Who really owns the content of a diary?

You will probably not be surprised to know there is a copyright element to this puzzle. Whether published or unpublished, the diarist will hold the copyright to the contents of the diary for it was he or she who created it. Whatever they wrote is an original form of expression of various ideas, and it exists in a tangible form. Voilà. All the essentials for copyright are there. That copyright will persist for a number of years after the death of the writer, for a full seven decades in the case of most western countries today. The diaries themselves could be sold–this might happen if they were the work of someone famous–but even under these circumstances the purchaser does not hold the copyright. The copyright holder controls the right to reproduce and distribute excerpts from the diary. Most posthumous copyrights are held by the heirs to the estate of the diarist, which facilitates the creation of family histories. However, as one professional archivist has noted, in a blog post on Copyright Fundamentals for Family Historians,

“I may have a diary my mother wrote, but she still retains the copyright of its contents. If I wanted to publish this diary, in whole or in part, I would need to ask permission first.”

And if your mother is not around to ask, unless you are the designated heir to her estate, you would need to ask permission of whoever that is, or, if you are sharing the estate with someone else, a sibling for example, you would need to get that person’s permission to publish. Many diaries, however, are in the public domain, their copyright having expired. So, if you are going to quote from the letters of Pliny the Younger describing the eruption of Vesuvius and the destruction of Pompeii in AD79, you are on firm ground.

Letters are also protected by copyright, as Megan Markle, Duchess of Sussex, clearly proved with her successful lawsuit against the British tabloid Daily Mail for publishing excerpts from her private letters to her father. The Mail was ordered to pay substantial financial remedies to offset Markle’s legal costs for violating her copyright. A separate action regarding violation of privacy also went against the Mail although the award for damages in that case was symbolic.

If you don’t want your diaries read or worse, published, after you are no longer here, then burn them. Otherwise, your heir or heirs will call the shots. Moreover, at some point in the future, when your copyright has expired, they will be in the public domain and freely publishable by anyone. This is assuming that anyone at that stage would actually be interested in publishing your catalogue of daily doings and impressions. It’s most unlikely. My advice to diarists: Write for yourself, not the future.

© Hugh Stephens, 2023. All Rights Reserved.

Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores.

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