Reader objection on the subject of copyright

I found this anon. comment on the blog worthy of reprinting because it sums up many questions that people have concerning publishing and the commons.

I think when discussing “big picture” aspects of music related to intellectual property rights, one need approach this without a preconceived, a priori sense of how things “should be” in an idealized vision for the church, especially to the extent that this engenders sometimes far fetched over reaching and specious arguments to buttress unfounded claims, leaving out key elements in those stories used to provide raison d’etre for such.

To claim that copyright law somehow sets up a situation where an artist just cannot get his stuff out there in a “freely distributed” fashion is pure poppycock. Artists have always been at liberty to make their music available for free if they so choose. So do that if you think that best works, especially in regard to church. Please, by all means.

Lumping the traditionalist movement in with one’s private vision for dismantling intellectual property law is ludicrous, as are arguments about comparing the making a consumable (sandwich – eat once) and comparing that to a piece of music which one can charge many times for (small benefactors vs. one wbo might commission a work and underwrite the whole endeavor with on check) and then try to bend people’s brains to try and wrap heads around an argument that in the end is just plain nutty.
Intellectual property rights were established to protect and benefit artists. I know artists who can actually raise families and not live in a shack because of such beneficial codes, and these are, though sometimes imperfect, wrought out of a sense of fair play. Again, no one is forced to use these protections.

I do agree that some of the modern translations of liturgical prayers and approved Bilical texts seem to operate out of an idea that the “translation” is somehow a protected property, as if it was a real creative work, and thus, copyright law and theory is used in a somewhat abusive and coercive manner, to the detriment of the church. In this instance, the Church herself is to blame for not commissioning these as “works for hire.” This is aberrational in the grander scheme of copyright law and should be addressed as such, not seen as a flaw in the theory of intellectual property protections.

I’m pleased to see this last paragraph in particular. I think the good guys have won this debate. The Book of Common Prayer is in the commons, as are the books of the Eastern liturgy. All liturgical texts were published without state monopoly privilege in the past. There is no reason to continue what is essentially a 20th century innovation that has created a cartel of publishers and seriously hindered the spread of the Gospel.

I’ve yet to find anyone who seriously disagrees with the moral claim that liturgical texts should be and must be in the commons. Even Vatican officials recognize the serious problems associated with the use of exclusive and traditional copyright on liturgical texts, despite periodic lurches in the direction of endorsing them.

When will they come to an end? This is where matters get complicated. Some people with ICEL would like to see this ended. Many publishers would be thrilled to see all liturgical texts in the commons. But accomplishing this requires the agreement of all English-speaking conferences – essentially a bureaucratic feat of monumental proportions at this point. This is not a decision that ICEL can make on its own because ICEL itself is not the copyright holder on the texts that it generates and oversees. I seriously doubt that we will ever see an open agreement to restore natural liberty with regard to the texts. They will eventually open de facto as the conferences themselves stop enforcing their copyrights, as they must in a digital age that is on fire for spreading the Gospel.

Note too that the Church is in an unusual position as a creator of texts. Most text creators can sell their text to only one publisher. The publisher then takes possession of it. Under the law, so long as they keep the work in print (this means an indefinite period of time given print on demand), the creator/artist loses all control, not for a decade or two but for his or her entire life, plus seventy years! This is what the law specifies.

In other words, your grandchildren will be the people who will be charged with resurrecting your work, if they care about it. Otherwise, the publisher will have buried it as long as the text is not commercially viable. As regards your rights as creator, you have none in your lifetime so long as you have signed them away.

This is what is known as author rights. Ridiculous, isn’t it? Yes, it is. So why to creator/author/artists go along? They are tempted by the idea of royalties. This is something like a joke. You have a much greater chance of winning the state lottery than you do at making a living off royalties. Yes, some manage it. As Adam Bartlett says, there are perhaps 5 or 6 living Catholic musicians who are able to cobble together a living based on royalties. For the rest of them composers, they lose. Not only do they not make a viable income, they lose control of their work for their entire lives.

The Church however is in a different position. It can market its texts to many different publishers and under contractual terms that the Church specifies. No other composer of text or music is in a similar position.

And while it is true that artists have always been in a position to release their work in the open, they are often naively flattered by the prospect of royalties and make the fateful decision to sell their work to a single publisher. When they lose this gamble, as they nearly always do, it is too late. Their works are already enslaved in the machine, essentially gone and buried forever. This is deeply tragic. And this is why the institution of Creative Commons was invented; it prevents works from being grabbed and copyright protected by pirates while guaranteeing a full and universal distribution of art.

Thus we can see that the composers and artists are the main losers under the old system. This is hardly surprising. Copyright was invented as a mechanism of speech control during the religious struggles in England of the 16th century. (It is not true that “Intellectual property rights were established to protect and benefit artists”; on the contrary, they were designed to suppress the work of some artists and protect the work of others that supported political priorities.)

Copyright gained no traction as an institution in Europe until France bit the apple in the 19th century in the name of protecting artists against censorship. In Germany, however, copyright never made inroads, and not only did this free system permit the emergence of Bach, Mozart, Haydn, Beethoven, Bruckner, and Brahms, but it also led to Germany’s rise as an industrial nation.

International copyright laws only came into effective in the early 20th century, and they have grown ever more tight as the decades have passed, in response to corporate lobbying by Disney and others who want to hold on to monopoly power. During this time, the art that has flourished is that which has eschewed the use of copyright (rock, country, jazz, rap) while art that has used the institution has suffered terribly (art music and liturgical music), which is exactly what one would expect.

In any case, my private crusade on this matter makes no difference. The future is clear to everyone, and it is this: there is no future for the old-fashioned system of printed, copyright protected, mail-distributed sheet music. The industry is dying and will continue to die for the next decades. All its main players know this. The future is with open-source music, distributed digitally and printed on demand. We need to either get with this program or suffer the results. We can choose poverty and obscurity or a flourishing world of artistic wealth through open sourcing and micro-patronage.

The other day, I ran across the work of a living composer from a recording on Amazon. I wrote her to ask how I can buy the sheet music. Ten minutes later, it was in my email as an attachment, with a note that encouraged me to send it and post it as widely as possible. I ask this person why she did not use conventional copyright. She wrote back and said that the conventional system was exploitative and she wanted nothing to do with it.

What I like about the new system is how it replicates and improves the system that gave rise to the golden age of Church music. The music of the faith and the text of the faith should be produced and distributed in the same model as the faith itself: freely, expansively, universally. The ChantCafe isn’t just talking the talk here; we are showing how it can be done.