The interview the American Federation of Musicians doesn't like

Michael Geist reports: At a recent Town Hall Meeting on copyright reform held in Toronto, Olivia Chow, a Member of the Canadian Parliament and a participant at the meeting, attempted to distribute flyers containing an interview with Charlie Angus, another Member of Parliament. In the interview, Angus discusses his views on copyright reform. MP Chow reported that security at the meeting venue attempted to stop her from distributing the flyer. She doesn't say whether they succeeded. She must have distributed a few of the leaflets at least, though, since one fell into the hands of Alan Willaert, the Canadian representative of the American Federation of Musicians. Willaert then sent an email "to representatives of virtually every major Canadian creator group" in which he stated

I am shocked that both Chow and Charlie Angus are allowed to openly depart from party policy and directive, obviously just to shamelessly buy votes among young people and academics. We intend on taking the NDP [the political party of which Chow and Angus are members] to task over this, and will accept nothing less than a retraction of Ms Chow’s statements and an apology.

A quick glance at Angus's interview shows that it is quite moderate. To my great disappointment, Angus doesn't even call for a reduction in the copyright term! He merely states that the previously introduced copyright reform bill, C-61, was ill-drafted, that musical performers need to find new business models, that there needs to be a debate on private file-sharing, and that the U.S. DMCA is not a model to be followed helter-skelter by Canada. Yet the American Federation of Musicians thinks that Angus's moderate statements are inappropriate for a member of a political party that pledged support for "appropriate copyright protection." I think this confirms what I wrote in a previous post: those who have brought U.S. copyright law to its present state (and who wish to bring Canadian copyright law to a similar state) are not all reasonable people with whom one can reasonably disagree. They are, in the realm of the intellect, extremists. Reformers need to keep this in mind.

As a bonus, here is my wish-list for U.S. copyright reform. One wonders what the American Federation of Musicians would make of it:

1) Withdraw from the Berne Convention
2) Reduce the duration of copyright to 60 years maximum for published works. Shorter still would be even better.
3) If the term of copyright in published works is greater than 50 years, require formalities for the copyright to be fully effective beyond the 50th year. If the formalities are not complied with, the copyright would subsist for the full term, but remedies would be much reduced.
4) Repeal the DMCA's "device" and "circumvention" provisions.
5) Automatic termination of all assignments at fixed intervals.
6) Author's successors to be specified by statute. Possibly not even the author would be allowed to will the copyright to anyone else. This, together with the automatic termination, will prevent excessive fragmentation of rights and provide for easy identification of the rightsholder.
7) Provide for more generous margin of fair use. For example: (a) peer-to-peer computer file exchanges to be free, and (b) the judges' distinction between "satire" and "parody" is unworkable: both should be fair uses.
8) Scrap copyright in architectural works themselves. Blueprints will of course remain copyrightable.
9) Amend the law of trademark to focus more narrowly on graphical marks (no sounds.) Burden to be chiefly on mark-holders to inform the public to look for its mark and beware of imitations. Any publisher, for example, should be permitted to publish Beatrix Potter's Peter Rabbit in an edition of the same dimensions as the Warne editions. The public would need to take care to look for the Warne mark if it wanted Warne editions.

But they are evil monopolists

An anonymous commentator, posting to William Patry's new blog wrote:

Quite frankly, it does seem a bit silly and unproductive all the constant bickering, to wit: "It's property!", "It's monopoly!", etc., etc.

Why not call a truce and simply agree to disagree about an issue as to which there is no clear answer? Treat the issue for what it really is, a political question over which reasonable minds can differ, and then in lieu of argument direct one's energy to participation within the political process?

To which Bill Patry replied:

Anonymous, I agree with you wholeheartedly: in the book (page xviii), I point out that those who oppose copyright owners' recent efforts use their own rhetorical devices, "The purported folk devils employ their own rhetorical devices, describing copyright owners as dinosaurs, Luddites, and evil monopolists out to squelch freedom of expression, and out to force corporate culture down the public’s throats. "

I, however, find Patry's response here to be naive. The Copyright Term Extension Act (CTEA), and the "device" and "circumvention" provisions of the Digital Millennium Copyright Act (DMCA) are in and of themselves acts of copyright extremism. They are acts of force and violence against human intellectual freedom. Anyone who does not call for the repeal of these legal provisions becomes, by that very silence, in the realm of the intellect a violent extremist. Any such who then calls for a reduction in the rhetorical temperature of the debate is merely a hypocrite, since they have already consented to acts that are far more extreme than any words.

Goodbye, Ted

However favorably I remember Edward Kennedy, the late Senator from Massachusetts, on other grounds, my opinion will always be qualified by the memory that Kennedy could have opposed the Copyright Term Extension Act of 1998. He could have, and he didn't.

Mike Masnick inverviews Bill Patry

There is an interesting interview with Bill Patry over at Techdirt. The former professor, now a corporate lawyer for Google, states that he began in copyright holding a position close to copyright maximalism, but his views began to evolve when, as a member of Congressional Committee staff, he began to reflect more deeply on copyright's public purposes.

1998 was a watershed year for me, with term extension and the anti-circumvention parts of the DMCA, which, in tandem represent the Rubicon for me, the point at which copyright became unmoored from its fundamental purposes.

Indeed, back in "the days of '98" I found then Professor Patry's 1997 journal article "The Failure of the American Copyright System: Protecting the Idle Rich" (72 Notre Dame Law Review 907, May 1997) to be helpful and inspiring as I was trying to develop and articulate my own copyright philosophy.

Mike asks, "For many of us who are concerned about what copyright law has become, what do you think is the most effective way to change things?" Patry's answer is

I would talk to Michael Geist in Canada. He is, to me, the single most effective advocate for the public voice in copyright debates. He is also respected by many Canadian government officials. We do not have anyone remotely like him. It's not enough to rail about things you don't like, or have a following of people who idolize you. And that, unfortunately, is the rut we are in here.

This is perhaps one of the most important statements in this important interview. American conditions are very different from Canadian, of course. What would it take to develop a voice on behalf of the public domain that politicians would hear? If it can't be done nationally at first, can it be done in one state, so that the Senators of at least one state, before they cast their votes on copyright matters, have the decency to consult those who speak for the public domain? If it can't be done in one state, can it be done in one congressional district, so that there is at least one Congressman who is willing at least to listen to those who would challenge the maximalists' lies?

Copyright scorecard--what have we gotten in exchange for giving up our freedom?

Over the past 50 years, the copyright monopolists have gotten almost everything they asked for in expansions of copyright:

1) The copyright act of 1976, which greatly expanded U.S. copyright's scope and duration both.
2) The elimination of the renewal requirement in the early 1990s.
3) A levy on all blank digital audio tapes.
4) An open-ended anti-bootlegging provision forbidding trade in unauthorized recordings of public musical and dramatic performances.
5) The Copyright Term Extension Act of 1998, which extended pre-1978 copyright from 75 years to a whopping 95 years from publication.
6) The Digital Millennium Copyright Act of 1998, which added additional barriers, in the form of its "device" and "circumvention" provisions, to the public's use of digital works.

For this great give-away to the robber-barons, the public has gotten very little in exchange:

1) The Audio Home Recording Act, with its extremely stingy wording. It does not state that the public has freedom to make home recordings, only that "no action shall be brought" against someone who does.
2) The narrow "homestyle exemption" to public performance licensing requirements.
3) As part of the Copyright Term Extension Act, some additional narrow leeway in the exemptions from public performance licensing requirements for small clubs and restaurants. The enemies of this provision, who were supporters of the term extension, have obtained, or at least rooted for, a World Trade Organization ruling against the expanded licensing exemptions, possibly as part of a back-door strategy for their repeal.
4) As part of the Digital Millennium Copyright Act, some safe-harbor provisions for internet service providers and a few technical provisions applying to software copyright.
5) Replacement of the state and common-law right of first publication (RFP) and anti-bootlegging right in phonograms with a uniform federal copyright in unpublished works. Note that there is less here than meets the eye. In particular, those who claim that this is a replacement of a "perpetual common-law copyright" with a limited copyright are not telling the truth. The common-law right was only a right of first publication, not a "common law copyright". And it was not "perpetual", merely indefinite.

Nor can it be said that we have gotten more creative works in exchange for what we have sacrificed. The duration of copyright was increased by 27% by the Copyright Term Extension Act. We should, then, have gotten 27% more new music, films, and books entirely due to the term extension alone. If the major labels and major film studios are producing a quarter again more than they were in 1997, it is not obvious. Even if they are producing more, it is not self-evident that the increase in production is due to the term extension, and the term extension alone.

Lord Kames's opinion in the case of Hinton v. Donaldson (1773)

I have finally acquired the full text of Lord Kames's opinion in the important Scots Session case of Hinton v. Donaldson (Scots Court of Session, 1773). Previously I have had only extracts available to me.

This was the Scottish counterpart to the well-known English case of Donaldson v. Beckett (House of Lords, 1774) and the American case of Wheaton v. Peters (33 U.S. 591, 1834), all of which held that copyright is entirely a creature of statute. Hinton v. Donaldson was the first of these three important cases to be decided.

The first edition of Thomas Stackhouse's New History of the Holy Bible had been published folio in 1737, though it may have been published in a smaller format earlier. The second edition was published in 1742. Since Stackhouse died in 1752, the copyright in the first edition lasted for 28 years, expiring no later than 1765. (The copyright in the matter new to the second edition would have expired after 14 years, in 1756. Since Stackhouse was no longer alive at the end of this term, under the provisions of the Statute of Anne, the copyright was not renewed. But the matter in the second edition that had been in the first edition was still under the original copyright.) After the expiration of the copyright, Alexander Donaldson, of Edinburgh, brought out a new edition of the work. Hinton filed suit under the theory of "common-law copyright", that is, that copyrights were perpetual under the common law, the Statute of Queen Anne merely reinforcing them. The case was decided by the Scots Court of Session which held 11-1 for Donaldson, rejecting the theory of common-law copyright. The judges delivered their opinions on July 27th, 1773, and judgement was formally entered on July 28.

Voting for Hinton was Lord Monboddo.
Voting for Donaldson were Lord Justice Clerk, Lord Alva, Lord Auchinleck, Lord Coalston, Lord Elliock, Lord Gardenston, Lord Hailes, Lord Kames, Lord Kennet, Lord Pitfour, and Lord Stonefield.

Hinton's complaint, the Judges' opinions, and the court order were published by James Boswell (who was one of Donaldson's counsel) in early 1774 under the title The Decision of the Court of Session upon the Question of Literary Property in the Cause of John Hinton of London, Bookseller, Pursuer; against Alexander Donaldson and John Wood, Booksellers in Edinburgh, and James Meurose, Bookseller in Kilmarnock, Defenders. This pamphlet may have been available to the English Lords at the time they were hearing the case of Donaldson v. Beckett.

Though in one place Kames expresses what may be deemed an aristocratic disdain of those who write for money, this does not impeach even the part of his opinion in which it occurs, though those who hate the public domain might wish to claim that it does. Kames plausibly holds that if every book ever written were under copyright, the market for books would contract and there would be less work for writers.

Kames's "Goths and Vandals" remark may be said to exaggerate the deadweight losses that copyright imposes on the book trade. But that these deadweight losses exist is beyond doubt. Kames rightly sees that a competitive market for editions of a book is better than a monopolistic one.

Lord Kames's opinion follows here.
======
LORD KAMES. What may be the law of England, with respect to the question at present under deliberation, I pretend not to know. Nor is it necessary that I should know; because an alleged trespass committed in Scotland against the pursuer, and prosecuted for damages in the court of Session, must be determined by the law of Scotland.

I know no foundation for damages, but a breach of contract, which is not pretended in this case; or an injury to one's person or character, which is as little pretended; or a hurt to his property; and this last is the ground upon which damages are claimed.

Let us enquire into the nature of the property here insisted on. The meaning of property, in the laws of all nations, is a right to some corporeal subject, that can be possessed, that can be transferred from hand to hand, that goes to heirs, that may be stolen or robbed, and that may be demanded by a real action, termed rei vindicatio. The pursuer's right is not of that nature. When a man composes a book, the manuscript is his property: if it be stolen from him, he may demand it by a rei vindicatio: it may be gifted by him, or sold. But by such gift, or sale, the property is transferred to the purchaser: he has now the same right over it that the composer had originally: he may suppress it, or he may publish it to the world.

What is then the nature of the pursuer's right? He does not pretend to say, that it is a right to any corpus, to any subject that can be possessed, or that can be stolen from him. Ergo, it is not property. Taking it in all views, no more can be made of it than to be a privilege or monopoly, which entitles the claimant to the commerce of a certain book, and excludes all others from making money by it. The important question then is, from what source is this monopoly derived, a monopoly that endures for ever, and is effectual against all the world? The act of Queen Anne bestows this monopoly upon authors for a limited time upon certain conditions. But our legislature, far from acknowledging a perpetual monopoly at common law, declares that it shall last no longer than a limited time.

But to follow out the common law. The composer of a valuable book has great merit with respect to the public: his proper reward is approbation and praise, and he seldom fails of that reward. But what is it that entitles him to a pecuniary reward? If he be entitled, the composer of a picture, of a machine, and the inventor of every useful art, is equally entitled. Such a monopoly, so far from being founded on common law, is contradictory to the first principles of society. Why was man made a social being, but to benefit by society, and to partake of all the improvements of society in its progress toward perfection? At the same time, he was made an imitative being, in order to follow what he sees done by others. But to bestow on inventors the monopoly of their productions, would in effect counteract the designs of Providence, in making man a social and imitative being: it would be a miserable cramp upon improvements, and prevent the general use of them. Consider the plough, the loom, the spinning wheel. Would it not sound oddly, that it would be rank injustice for any man to employ these useful machines, without consent of the original inventors and those deriving right from them? At that rate, it would be in the power of the inventors to deprive mankind both of food and raiment. The gelding of cattle for food, was not known at the siege of Troy. Was the inventor entitled to a monopoly so as to bar others from gelding their cattle? What shall be said of the art of printing? If the monopoly of this useful art was to be perpetual, it would be a sad case for learned men, and for the interest of learning in general: it would enhance the price of books far beyond the reach of ordinary readers. Such a monopoly would raise a fund sufficient to purchase a great kingdom. The works alone of Shakespeare, or of Milton, would be a vast estate. Te art of making salt water fresh is a very late invention. Was it ever dreamed to be a transgression against property, to use that art without consent of the inventor?

I observe, in the next place, that this claim, far from being founded on property, is inconsistent with it. The privilege an author has by statute, is known to all the world. But I purchase a book not entered in Stationer's hall; does it not become my property? I see a curious machine, the fire engine, for example. I carry it away in my memory, and construct another by it. Is not that machine, the work of my own hand, my property? I buy a curious picture, is there any thing to bar me from giving copies without end? It is a rule in all laws, that the commerce of moveables ought to be free; and yet, according to the pursuer's doctrine, the property of moveables may be subjected to endless limitations and restrictions that hitherto have not been thought of, and would render the commerce of moveables extremely hazardous. At any rate, the author of avery wise or witty saying, uttered even in conversation, has a monopoly of it; and no man is at liberty to repeat it.

Lastly, I shall consider a perpetual monopoly in a commercial view. The act of Queen Anne is contrived with great judgement, not only for the benefit of authors, but for the benefit of learning in general. It excites men of genius to exert their talents for composition; and it multiplies books both of instruction and amusement. And when, upon expiration of the monopoly, the commerce of these books is laid open to all, their cheapness, from a concurrence of many editors, is singularly beneficial to the public. Attend, on the other hand, to the consequences of a perpetual monopoly. Like all other monopolies, it will unavoidably raise the price of good books beyond the reach of ordinary readers. They will be sold like so many valuable pictures. The sale will be confined to a few learned men who have money to spare, and to a few rich men who buy out of vanity as they buy a diamond or a fine coat. The commerce of books will be in a worse state than before printing was invented: at that time, manuscript copies might be multiplied at pleasure; but even manuscript copies would be unlawful if there were a perpetual monopoly. Fashions at the same time, are variable; and books, even the most splendid, would wear out of fashion with men of opulence, and be despised as antiquated furniture. The commerce of books would of course be at an end; for even with respect to men of taste, their number is so small, as of themselves not to afford encouragement for the most frugal edition. Thus booksellers, by grasping too much, would lose their trade altogether; and men of genius would be quite discouraged from writing, as no price can be afforded for an unfashionable commodity. In a word, I have no difficulty to maintain that a perpetual monopoly of books would prove more destructive to learning, and even to authors, than a second irruption of Goths and Vandals. And hence with assurance I infer, that a perpetual monopoly is not a branch of the common law or of the law of nature. God planted that law in our hearts for the good of society; and it is too wisely contrived to be in any case productive of mischief.

Our booksellers, it is true, aiming at present profit, may not think themselves much concerned about futurity. But it belongs to judges to look forward; and it deserves to be duly pondered whether the interest of literature in general ought to be sacrificed to the pecuniary interest of a few individuals. The greatest profit to them ought to be rejected, unless the monopoly be founded in common law beyond all objection: the most sanguine partisan of the booksellers will not pretend this to be the case. At the same time, it will be founded upon the strictest examination, that the profit of such a monopoly would not rise much above what is afforded by the statute. There are not many books that have so long a run as fourteen years; and the success of books upon the first publication is so uncertain, that a bookseller will give very little more for a perpetuity, than for the temporary privilege bestowed by the statute. This was foreseen by the legislature; and the privilege was wisely confined to fourteen years; a sufficient encouragement to men of genius without hurting the public interest. The best authors write for fame: the more diffused their works are, the more joy they have. The monopoly then is useful only to those who write for money or for bread, who are not always of the most dignified sort. Such writers will gain very little by the monopoly; and whatever they may gain a present, the profits will not be of long endurance; a monopoly would put a final end to the commerce of books in a few generations. And therefore, I am for dismissing this process as contrary to law, as ruinous to the public interest, and as prohibited by the statute.

Bill Patry hits hard

In the ongoing debate at Bill Patry's new blog, Bill Patry is giving a good overview of the robber-barons' contempt of the public interest:

when a few years ago my wife got me a video iPod, I discovered I couldn't upload my DVDs to it, even though I can upload my CDs, thanks to the movie industry's insistence that I not be able to. This has nothing to do with piracy (a term I will use here for massive, non-transformative copying). The Betamax case had nothing to do with piracy, nor did the industry's decision to prevent hardware manufacturers, via DRM, from including a record button on DVD players, thereby effectively repealing the Betamax decision through DRM. The Cablevision RS-DVR case had nothing to do with piracy. The suit against Redbox and the licensing issues with Redbox have nothing to do with piracy, anymore than the industry's earlier attempt to control the video rental market in the mid-1980s. The term of copyright protection has nothing to do with piracy. Then there is the music industry side, where I previous gave examples of MP3.com and Launchcast, but there are many, many more. Even book authors embarrassed themselves this year by complaining about the text-to-speech feature on the Kindle 2.

Read the whole thing here.

Would The Beggars' Opera be possible today?

If John Gay (1685-1732) had had to produce The Beggars' Opera under today's copyright rules, would he have found it possible? Gay, and his musical editor Johann Christoph Pepusch (1667-1752), did not write a single one of the 69 melodies that were used in the play. Here is a back-of-the-envelope computation of what it might cost in clearance fees to licence the melodies if today's copyright rules had been in force in 1728.

Of the 69 airs in John Gay's The Beggars' Opera, 18 have been attributed by the musicologist W.H. Grattan Flood ("The Beggars' Opera and its composers, Music and Letters, 3(4), 402-406, October 1922.) to nine known composers. Of these nine, 7 were still alive in 1728 when The Beggars Opera was first performed. The two who were already dead, Henry Purcell (died 1695) and Jeremiah Clarke (died 1707) had been dead for less than 50 years. Under a life-plus-50 or life-plus-70 rule, then all 18 of the airs by known composers would have been under copyright in 1728.

Here are the composers with the airs attributed to them by W. H. Grattan Flood

Composer	Year of death	Airs in The Beggars' Opera
John Barrett	1735	#30, #55, #58
Giovanni Batista Bononcini	1747	#4
Henry Carey	1743	#34, #59
Jeremiah Clarke	1707	#2, #51, #66
John Eccles	1735	#11
G. F. Handel	1759	#20, #28
Richard Leveridge	1758	#15
Jean Joseph Mouret	1738	#22
Henry Purcell	1695	#6, #31, #41, #60

What would it have cost to license these songs today? Licensing the dramatic performance of a melody comes under the heading of so-called "dramatic performance rights" in the music business. I was unable to find quotes of typical licensing fees for dramatic performances of music. (Leave a message in the comments if you know of an appropriate figure.) However, to license a melody for background music in a medium-budget television soap opera costs around a thousand dollars. [1][2], though it can be lower or higher. This is for background music not for use as a song-tune. One of the web-sites linked above points out that

Due to the more extensive production aspects and higher aesthetic value placed on songs compared to instrumental music, special licensing rates apply. Song licensing is determined on a per project basis according to production budgets and venues of distribution.

In the case of The Beggars' Opera Gay would need to license each melody as a song-tune for which new words were to be written. These fees might run much higher than the 1000.00 figure we have found.

Proceeding anyhow with the $1000.00 figure since it is the only one we have, we get a clearance fee of $18,000.00 for the 18 melodies.

The computation so far assumes that only the 18 airs attributed to known composers would need to be licensed. Yet it is possible that most of the 69 melodies used in the Beggars' Opera were recent enough to have been under copyright by today's rules. Only a few, such as Packington's Pound (Air #43)and Greensleeves (Air #67) can be traced to the late 16th or early 17th century. And even in the case of these two airs, the version used by Gay was not necessarily the oldest version of the air. Hence the $18000.00 figure may be, if anything, an under-estimate.

By any computation under today's rules, then, John Gay would have had to spend a tidy sum in clearance fees before a single actor or musician was hired or a single costume was sewn. While the $18,000.00 sum computed above is small compared to the multimillion-dollar budget of a major broadway production, it is equal to "the average total production budged for an Off-Off Broadway show" [3], and would not be a trivial line-item in the budget of a half-million dollar Off-Broadway show [4]. Were Gay working under today's rules, he might well have found the creation of The Beggars' Opera cost-prohibitive due to copyright clearance fees alone.

The new tiger of corruption

For many years I have been hoping that an artist or cartoonist would update Thomas Nast's famous 1871 Tammany Tiger to portray the developments of copyright law in our time. The sketch below shows the sort of thing I have in mind, what a tiger for our times might look like. Clearly it is nothing more than a mock-up or plausibility argument: All I did was clip Nast's picture from an out-of-copyright book and add some labels. A real draftsman or cartoonist could do far better, giving the tiger a more contemporary look and feel, and making the members of the Tammany Ring in the stands look like our modern robber-barons. And Congresswoman Bono should be up there next to Senator Hatch.

Click on the picture for a bigger view.

Lammas Day Post--Mockingbirds must be free to sing!

This note was first posted to the original edition of this blog on Lammas Day (August 1st) 2005, as an entry in the Electronic Frontier Foundation's Blog-a-thon. I am re-entering it here because I think the issues are as important as ever.

I was one of the "men of '98" who opposed the 1998 Copyright Term Extension Act. Our opposition failed; the bill became law. Now, in 2009, we are about half-way through the extra 20 years that Congress gave to the copyright barons. If they are not extended again, copyright in works published in the U.S. before 1978 will again begin expiring on January 1st, 2019. We men of '98 predicted in 1998 that we would begin to hear calls for another extension beginning around 2015. In fact we were off be several years, for those calls have already begun.

Here follows the original 2005 post:
-------------------------------------

In late 1997 I found Professor Dennis Karjala's web site, Opposing Copyright Extension. I was dismayed to learn that Congress was considering extending an already generously long copyright term, seventy-five years, to a ridiculously long term of ninety-five years. What dismayed me even more was the tone taken by some of the extension's supporters: Some were going so far as to express a desire to destroy the public domain. Mary Rodgers, daughter of songwriter Richard Rodgers, was quoted in 1995 as saying "I wish, in a way, the public domain did not exist at all." (Robert Kolker, "Theatres on alert as Congress looks at copyright law", Back Stage volume 36 number 9, March 3, 1995, page 3.) Perhaps the clearest expression of this spiteful attitude was this statement, submitted to the U.S. Supreme Court in 2002, of the Nashville Songwriters Association International:

[C]opyright never removes any existing knowledge from the public domain. It merely postpones the legal piracy of a particular way of expressing that knowledge. (Brief Amici Curiae of the Nashville Songwriters Association International in support of Respondent, in the case of Eldred v. Ashcroft , August, 2002, page 10, footnote 7.)

By calling the public's use of the public domain "piracy", these writers are implicitly claiming that copyrights should never expire, and that publici juris literature should not exist. For Orthodox Jews to copy the Hebrew Pentateuch onto vellum scrolls without first securing permission from whoever should be the owner of copyright in every single passage of every single book, must be "piracy" according to the Nashville Songwriters Association International. To reprint the metrical psalms of Isaac Watts in a hymnal, without permission of whoever should be the owner of copyright in the lyrics of Isaac Watts, must be "piracy" in their view. To change the words of Isaac Watts in accordance with developments in theological understanding, and to print the altered words, must be double "piracy" according to the NSAI, since not only the right to reprint but also the right to prepare derivations has been infringed.

Fortunately I was not the only one to notice this rhetorical onslaught made by greed's legions against the very idea of human intellectual freedom. Professor Karjala had noticed; it was through his web site that I had been alerted to the matter. And another law professor, Paul Heald, had contributed an article to the Duke Law Jounal titled "Reviving the Rhetoric of the Public Interest: Choir Directors, Copy Machines, and New Arrangements of Public Domain Music" (Duke Law Journal, 46(2),241-290:1996), in which he discussed the tendency of some music publishers to claim copyright on almost everything they published regardless of the merits of the claims, and made some commonsense suggestions for weighing such claims in the case of church music.

Indeed, church music and church writings provide cases that make the inherently shared nature of music and letters especially clear. Even considered apart from their claims concerning transcendant numinous reality, Christian churches are human cultural enterprises that span multiple generations. Each generation recieves the tradition from the previous one, modifies it, and passes it on to the next. This process operates not just on tradition considered as an undivided collective enterprise, but to individual components of the tradition as well. In the particular case of church music, for example, a melody that is introduced by one generation for use as a church-tune might continue to be used in this way for generations, either unchanged (as in the case of the Old Hundredth Psalm Tune) or modified (as in the case of the American tune "Nettleton") or both (as in the case of some German Chorale melodies which exist in variant versions with different rhythms). Other melodies are added to the common pool as age succeeds age, some are discarded, and some are discarded for a time only to be recovered later. The same processes also operate in the field of the lyrics to congregational hymns and choral anthems. Scriptural and other traditional poetry is sometimes sung or recited in its original languages, but often it is translated into the local idiom, and this process is repeated by successive generations due to changes in language and literary taste, or simply because a new translator wishes to try his hand at the task. New translations and new lyrics in turn become part of the common pool, to be modified, revised, or translated into new languages in their own turn. The words to the familiar Christmas hymn "Hark the Herald Angels Sing", for example, as they are now printed in one American Hymnal, are the end-result of a long accumulation of such revisions over many generations.

These examples are drawn from the music and devotional poetry cultivated within the Christian traditions of northwstern Europe, since I know those traditions' music and letters best. But I suspect that one can find equally good examples illustrating the shared nature of human music and letters in other Christian traditions, in the traditions of non-Christian religions, and indeed in the music, letters, and other activities of many societies.

There are ancient cathedrals which, apart from their consecrated purpose, inspire solemnity and awe....The labor of generations of architects and artisans has been forgotten, the scaffolding erected for their toil has long since been removed, their mistakes have been erased...[and] we are impressed as by some superhuman agency. But sometimes we enter such an edifice that is still partly under construction; then the sound of hammers, the reek of tobacco, the trivial jests bandied from workman to workman, enable us to realize that these great structures are but the result of giving to ordinary human effort a direction and a purpose.

These words are not from a book about architecture, religion, or literature, but from the preface to Thermodynamics by G. N. Lewis and Merle Randall. In their preface, Lewis and Randall compared some aspects of the scientific enterprise to the building of cathedrals. Perhaps such a comparison can be extended to still more areas of human life. Perhaps the ability to draw freely on the past in order to create in the present could be used as part of a definition of civilization itself.

But regardless of how far the cathedral-building metaphor can be generalized, the examples given above make it clear that one's ability to work well in at least some fields of music and letters depends on the extent of one's freedom to use the works of the past without hindrance. The formation, maintenance, and development of literary and musical tradition flourishes in freedom. Each generation has the inherent human right to be free to make its own additions and modifications to the shared pool of music and letters.

All copyright law infringes on this basic human freedom. When copyright laws are carefully limited, it is at least arguable that in the end we gain more than we lose: through the law of copyright we restrain ourselves from using the most recent literary and musical expression as if it were fully part of the common pool, but in exchange we get a stable market for such works, and, we hope, more such works. When copyright monopolies are decently limited, recent but not-too-recent works are added to the common pool as the monopoly restrictions on their use expire, and so in the end the common pool will be larger than it might otherwise have been. But copyright laws in the United States and many other places have now exceeded reasonable limits in their durational provisions. In this situation, we lose freedom and gain nothing. The loss of freedom is made sadder because the freedom we lose has its utility doubted by many who rely on it without even realizing that they do so. They simply fail to realize the worth of what they have lost. Moreover, an army of cultured despisers, aiding and abetting the corporate interest and the forces of avarice, adds insult to the injury when, as in the case of the Nashville Songwriters Association International, it heaps contempt on this worthwhile freedom to use the literary and musical expression of the past without restriction in the present.

So the "copyfight", as it has been called, continues. For me, that means continuing to assert, even if none will listen, that the freedom to draw from the shared fountain of musical and literary expression of the past -- known to lawyers as the public domain, or the works that are publici juris -- is a freedom that exists, and ought to exist as a matter of right, and that needs no justification. It is the monopoly restrictions that the law builds by taking away parts of this freedom from us--the so-called copyright laws--that need to justify themselves over and over again, and to be kept within reasonable limits by a watchful public.




Blog-a-thon tag: EFF15