In praise of creative freedom 5--Steal this country dance

It is sometimes said that copyright is an incentive to creation, meaning that the possibility of reward to the author creates an incentive to the author to produce and circulate his (for "author" is a grammatically masculine word, just as "artist" is grammatically feminine) work. This may be true, but it is not the whole story. In order to demonstrate why I think this copyright-as-incentive notion is incomplete, I will describe how I recently created an arrangement of an 18th-century English country dance, Nottingham Castle.

I start with the melody. This melody was first published in the 11th edition of The Dancing Master in 1702, and it is now publici juris. Here is the version of the melody from the 12th edition of 1703. Because the melody is publici juris, anyone may copy it, from here or from anywhere else it occurs:
Next I add backing chords. I use basic chords, I, IV, V and their relative minors (since this is a major melody). My chord-underlay is so simple that it might not even be copyrightable. The United States Court of Appeals for the Second Circuit has held (upholding the Federal District Court for the Southern District of New York) that "cocktail pianist variations" on a musical work do not rise to the level of originality to qualify the variations as a derivative work of the underlying work. (Woods v. Bourne,60 F. 3d 978 (2d Cir. 1995)). The Court of Appeals's opinion in Woods v. Bourne, though, refers to minor variations in the harmonization of an already-harmonized work, so it might not apply to harmonization of a melody ab initio. So I regard it as possible, but not certain, that a simple backing-chord underlay for a publici juris melody is sub-copyrighable under U.S. law.

After adding the backing-chords, I devise a counter-melody consistent with them, though in the course of development I might modify the backing-chords to match the countermelody, rather than writing the countermelody strictly to the chords. The counter-melody is probably copyrightable, since (if it follows the rules of counterpoint) it is an independent melody, which if original (which in this case it is, since I wrote it) would be copyrightable on its own.

Next, if I wish, I can attempt to market my arrangement. If I do so in a way that relies on the exclusive rights provided by copyright, then copyright can be said to have "promoted the progress of science" by encouraging me to bring my setting of the dance-tune to market. What seems to be far less appreciated, but what is far more important, is that even if I do not choose to exploit my work commercially, the copyright law has still promoted the progress of science in this case. It did this by placing the underlying melody, Nottingham Castle, in the public domain where I could draw on it freely. So copyrights promote progress both by existing, and also (and perhaps even more than by their existence) by expiring. The holes (as Professor Boyle so memorably put it) are as important as the cheese.

Now suppose I wish to attempt a somewhat different project. Here is another delightful English country dance-tune called Black and Gray:



I think I could take this melody and splice into it some musical motifs from John Lennon and Paul McCartney's "Elenor Rigby" to create a new composite dance-tune. But though I may have sufficient musical ability to do this, I haven't the right. This is because the air "Elenor Rigby" is copyrighted, and under my country's copyright laws, the copyright holder's bundle of rights includes the right "to prepare derivative works based upon the copyrighted work." Note that the derivation right is not a right "to prepare derivative works for public performance, dissemination, or display." It is an unqualified right "to prepare" derivative works. Any creation of a derivation of a copyrighted work, however private, is prima facie an infringement of the copyright. Working strictly in private might count as fair use. Maybe. Or maybe construing the right "to prepare" derivative works to reach even to purely private acts would be considered unreasonable statutory construction. Maybe. But even if I don't infringe by preparing the new melody privately, I will certainly infringe if I try to post it to the web or circulate it in sheet music. Here, by contrast to the case of my setting of Nottingham Castle, is a case in which copyright law has prevented the progress of science by including a very broad derivation-right in the bundle of rights granted to the rightsholder.

The U.S. copyright law did not always include a derivation-right. The first U.S. federal copyright statute of 1790 applied only to "maps, charts, and books" as they were published. A competing publisher could not enter the primary market for the book until the copyright expired. But derivations, such as translations, abridgements, and musical arrangements, were free, and the public continued to have this freedom for much of the 19th century.

In theory, (as I noted some years ago here) the public has consented, through its representatives, to derogate to copyright holders the freedom it previously had to make derivations of copyrighted works. In theory we did this because the copyright would become more robust and more potentially valuable with this addition, giving an incentive for the production of still more expression, thereby giving us in the end an even larger public domain than we would otherwise have had. In theory, that is, we voluntarily forego our full rights in more recent works in order to have more works than otherwise to exercise our full rights in after a "limited" time.

In practice, as I noted back in 2005, "the public's representatives have not represented the public so much as private interests". We cannot be said to have gotten a good bargain from U.S. copyright law in its present form. The great breadth of copyright's present scope, whatever might be said on its behalf otherwise, is made intolerable by copyright's extremely long duration. The first step toward making the bargain better for the public would be to reduce the duration of copyright from 70 years after the author's death back down to 50 years after the author's death. This would still be too long, especially for such things as computer software. But we should refuse to allow any further expansions to copyright's scope, however arguably reasonable they might otherwise be, until we first get this concession on its duration.

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Prior installments in this series:
In praise of creative freedom 4--"He took a straight walk up to Washington city"
In praise of creative freedom 3--"Joined to the heavenly company"
In praise of creative freedom 2--"That song of the Gypsy Davy..."
In praise of creative freedom