Sunday, August 2, 2009

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.

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1 comment:

Jack said...

thanks for sharing