The right to remain unpublished and the posthumous publication of Gabriel García Márquez's work "See You in August"

What is the right to remain unpublished?

It is the moral right of an author to decide whether to publish his work or keep it unpublished. According to Decision 351 on Copyright and Neighboring Rights, this right is characterized as being unrenounceable, inalienable, unattachable, and imprescriptible (Art. 11, Decision 351).

In this case, prior to his death, Gabriel García Márquez expressly stated that he did not want to publish the work “See You in August” because it was not ready. This decision, in exercise of his right to remain unpublished, was respected until 2024, the year in which his work was finally published posthumously and without the author’s consent.

Who holds the right to remain unpublished after the author’s death?

Ownership of the right to remain unpublished belongs exclusively to the author and is non-transferable; however, upon the author’s death, the exercise of economic rights falls to the respective rightsholders, who are usually the heirs (Art. 11, Decision 351).

Regarding García Márquez’s heirs, they authorized the posthumous publication of his work, arguing that although the work was not polished, it was complete. Currently, this behavior is questioned for failing to safeguard the author’s original will and ignoring the limits of the right to remain unpublished, which belonged exclusively to the Colombian Nobel laureate who had already explicitly stated his intention.

Legal actions in the García Márquez case

Legally, those entitled to enforce or claim the moral rights of a deceased author are precisely their heirs. Since the heirs themselves permitted the publication of the novel, the possibility of legal action being initiated is virtually non-existent.

We all celebrate being able to read one more work by García Márquez, but what about respect for his copyright?

At Quevedo & Ponce, we analyze the regulatory framework of intellectual property and the scope of copyright to provide specialized legal advice in managing and protecting intellectual creations.