Jorge Luis Borges and the Labyrinths of Copyright

The author’s widow died without naming who’d take over his literary legacy. Heirs would emerge but the 150 year-old global regulations need updating

Maze honoring Jorge Luis Borges in Cuadro Bombal, San Rafael Mendoza.
By Howard Chua-Eoan
July 04, 2023 | 11:00 AM

Bloomberg Opinion — The Argentine Jesuit Jorge Mario Bergoglio used to tell a story about inviting the Argentine writer Jorge Luis Borges to speak to his class about literature. Bergoglio, who is now Pope Francis, said that the famously agnostic Borges confided that he had promised his very Catholic mother that he’d say the Lord’s Prayer every night.

When I was assigned to write Time magazine’s Person of the Year story about Francis, I decided to check the veracity of the anecdote. After all, Bergoglio told the tale before he was infallible. Borges wasn’t around to verify it — he died in 1986. So, when I was in Buenos Aires in November 2013, I arranged to have tea with the only other person who could certify the story. That was Maria Kodama, Borges’s widow and the guardian not only of his artistic legacy but his copyrights.

As such, she was one of the most powerful people in global literature, controlling the officially sanctioned editions in all languages of his countless short stories and essays. La Fundación Internacional Jorge Luis Borges, which she created in 1988, worked with the Wylie Agency, based in New York and London, to oversee — and police — the publication and use of his works. Judging by a later dinner I had with her, Wylie took very good care of Kodama during her visits to Manhattan. Of Japanese and German descent, she’d met Borges late in his life. Nearly 40 years his junior, she’d been his student and absorbed his fascination with early English and Anglo-Saxon literature. By then, he was already blind. He never saw her face.

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Kodama died on March 26 of this year without designating an heir. So, who was in charge of Borges estate then? If there was no one, would the Argentine government take over for the remaining years before his works passed into the public domain? That would be 2056.

Jorge Luis Borges plaque - rue des Beaux Arts, Paris 6

As it happily turned out, government bureaucrats wouldn’t inherit the Borges legacy. But in the weeks between Kodama’s death and a court decision in Buenos Aires, book agents, authors, publishers and lawyers anxiously reviewed cross-border copyright laws — rules that were set in the late 19th century with the help of l’immortel Victor Hugo. To some extent about a century later, they’d be influenced by Sonny Bono, the singer-turned-US congressman who used to be married to the pop culture icon Cher.

In the mid-19th century, professional “listeners” would attend theatrical performances and transcribe from memory the melodies of new operas, which would then be published and sold to the burgeoning middle classes across Europe, who wanted sheet music for the pianos they could finally afford. Popular novels and short stories, while protected within national borders, would be translated in a rush and published at will at printing presses abroad. Hugo — probably the most ripped-off author of the time — spearheaded the multilateral Berne Convention of 1886, which apart from setting continent- and eventually worldwide norms, would establish that the heirs of an author, playwright or composer would hold the rights to his or her works until 50 years after the creator’s death.

That duration would later be extended to 70 years by the US and most other countries — though America would not accede to the Berne conventions until 1989. Washington would also pass the Sonny Bono Copyright Term Extension Act. It was named for the entertainer who first sponsored the bill before he died in a January 1998 skiing accident. It became law in December of that year and stipulated that 95 years had to pass before “work for hire” (novels, cartoons, music et al) entered the public domain — covering everything from the year 1923 onwards. Thus, Walt Disney’s “Steamboat Willie” (the animated debut of Mickey Mouse) becomes a commercial free-for-all next year. (Bono wouldn’t have been happy with all this. His widow Mary, who succeeded to his congressional seat, said he wanted copyright to extend in perpetuity.)


I can see an eventual legal challenge when a recording artist outlives the 95-year guarantee that comes with a work’s creation. More practically, however, none of these rules really deal with the complexities of digital publishing. Indeed, the Berne convention is trapped in its own Borgesian labyrinth because its rules forbid reforms that might contradict the original intent of the agreement.

The slew of licensing requirements that have emerged from Berne is particularly unhelpful in a world where speed of dissemination is key. And while the 95- and 70-year durations may be comforting to some heirs, you have to pity the poor authors who don’t have heirs. Are their potentially valuable works then thrown into the equivalent of a literary potters’ field? Are they then at the mercy of academicians yet unborn who must might sort through dusty shelves of libraries to rediscover their writing? Wait, what are libraries? If a book isn’t digital, does it even exist? What would Borges say about a cosmos where words have become dotty?

In the Argentine immortal’s case, the three daughters and two sons of Kodama’s younger brother — who predeceased her — came forward to press their claim to the estate. An Argentine court recognized their rights last week. Her sobrinos reportedly have an excellent relationship with the Borges foundation. Wylie says it will continue to represent the author’s oeuvre. All remains status quo with the Borgesian legacy.

I’ve left you hanging. What did Kodama say about the pope’s claim back in 2013 when I first met her? She said the pope’s account wasn’t quite the whole story. Her husband did indeed make the promise to his mother. But he didn’t say the prayer in Latin (Pater noster qui es in caelis) or Spanish (Padre nuestro que estás en los cielos). She said he would recite it in Anglo-Saxon (Fæder ūre, ðū ðe eart on heofonum). He kept his promise but in his own way.

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Kodama was ferociously loyal to Borges’s memory but left her own strong impression and mystique on everyone who came to her seeking him. At our 2013 tea in Buenos Aires, she politely but sternly put an end to questions by my colleague Hilary Burke that she felt would give clues to her exact age. “I’m not going to help you with that,” she smiled. As post-mortem court papers would reveal, Maria was 86 when she died, the same age as Borges, who passed away in 1986. The Berne copyright convention was signed in 1886 — a preternatural, numerical resonance in this labyrinthine journey through vanishing libraries.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Howard Chua-Eoan is a columnist for Bloomberg Opinion covering culture and business. He previously served as Bloomberg Opinion’s international editor and is a former news director at Time magazine.