[HANASHIR:14913] Re: Future of Music (long)

[Judah Cohen <jcohen...>]

>
At the risk of getting myself embroiled in the same old debate, a few 
responses.
>
>> This is not a debate about whether artists should be
>> compensated for their creations.  It is about a
>> broader subject:  who really "owns" the little bits
>> of stuff that swirl around us, blended together over
>> generations and which serve to create what we call
>> "culture".
>
> This matter is already regulated by International
> Copyright law. Basically, the original work
> comes into the public domain 70 years after the
> author has died. However, later reprints and
> rearrangements of the original work are covered
> by copyright in their own right.
>
> I personally think that the status quo is reasonable
> and clear. In what sense would you like to debate it?
>
The "status quo" as you state it is not really status quo.  One of the 
significant issues with copyright law is the question of how those 
works under copyright and those in the "public domain" relate to each 
other.  These concepts are no more than a few hundred years old (from 
my records the earliest copyright laws were from England at the turn of 
the 18th century; especially as we like to talk in Jewish music terms 
here, that's not all that far back).

The issue, as it's been presented from my American perspective, is that 
copyright laws were created to give the creator a certain amount of 
time to profit from their works, before they fell into the public 
domain.  The issue that's been constantly at the center of the debate 
is two-fold:  The first (and most discussed), is how long the creator 
is entitled to "own" their work.  The second, which is debated only by 
implication, is *who* is subject to these laws.  (Do not assume it was 
always everyone--copyright laws are inextricably bound to the 
technologies of musical reproduction; while only a small elite could 
afford such luxuries as pianos and sheet music at the start of the 18th 
century--when England passed what is believed by some to be the first 
intellectual property law--now access to the latest technology has 
become almost universalized.  Thus the population affected has changed 
substantially, and this as I see it is one of the many reasons for the 
intense debate.)

The amount of time artists "own" their own works has changed 
drastically over the past 125 years or so, on all fronts.  
[Sidelight--the basis of international copyright law as we know it 
today is the Berne Convention from 1886, to which the US finally signed 
in 1988.  There were earlier copyright agreements, but Berne is really 
the watershed in Europe.] And as much as we like to think it's the 
artist who has benefitted from all this (and indeed the artists have, 
especially earlier), the fact is that the vast majority of the 
political lobbying done on the governmental level recently has been 
done by recording and publishing companies who *represent* the 
artists--and of course will continue to get a cut of the profits as 
long as the artists' songs remain under copyright.  The simple solution 
was that whenever copyright for an important and profitable body of 
work was about to expire, members of the industry would exert their 
political influence and legislation would be passed to extend copyright 
protection for another few decades.  The Disney company, for example, 
was a major player in the relatively recent Sonny Bono Copyright 
Extension Act from 1998, which will keep Mickey Mouse under copyright 
well into the 21st century.  From my understanding, this Act brought 
the US in line with International copyright legislation passed in 1993.

These most recent acts essentially kept the vast majority of creative 
production in the 20th century under copyright protection.  The concept 
of the "public domain" at this point--an important part of early 
copyright law--has been squeezed to almost nothing; and, for better or 
for worse, the upshot is that those who have benefitted from those 
extensions have (rightly) developed the moral justification to call 
unauthorized use of their works "theft."  Such is the law today--and it 
suggests that the "status quo" tends to refer only to the *state* of 
the works themselves (i.e., under copyright/public domain), rather than 
the laws that protect them.

[Another situation to show the politically variable nature of copyright 
law also involves Disney.  The movie "Fantasia" included a large part 
of Stravinsky's "Rite of Spring," first performed in 1913, but edited 
drastically by Stokowski (the conductor in the film) to fit the 
animators' story needs.  Legally, Stravinsky should have had the right 
to protest, right?  No.  The Russian Revolution had, among other 
things, annulled several years of Imperial copyrights, leaving the work 
wide open for appropriation.  And so Disney got away with it, no 
questions asked.  Theft?  Legally, not at all.  And now most of 
America's children grow up thinking that it's a piece about dinosaurs.]

As to WHO the laws affect:  Copyright law works fine as an idea, but in 
the real world it's a lot messier.  I've argued this at length earlier 
on this list, so I won't add much to that for now, save to say that in 
the last few years, especially with the mp3 phenomenon and the 
widespread access to technologies that can make exact duplications of 
almost any sound, the meaning of intellectual property infringement has 
become more invasive.  For the first time in America (from what I 
understand), recording companies are now suing individual citizens for 
what they consider mass distribution of copyrighted property.  Maybe 
they are right, maybe not--that's for the courts to decide.  But 
remember that both sides of the argument have legal precedents; what 
has changed is the format, scale and place the distribution.  These 
changes themselves show that there's still much room for debate.

>> Just think for a moment how different our world would
>> be if The Bible was protected by copyright.  Or the
>> works of Mozart.
>
> These are in the public domain.

Well, yes and no.  The "author" of the Bible (okay--the author's estate 
:) ) is not receiving royalties, and nor is Mozart's estate receiving 
royalties.  However, as you state above, those who make commercial 
translations of the Bible ARE receiving royalties; as are those artists 
who record, edit or arrange the works of Mozart.  Only the original 
texts themselves are royalty-free; for those who freely use Everett 
Fox's translation of the Torah, however, it's another issue entirely.  
The only way one can use these works *without* facing copyright issues 
is by quoting directly from the urtext, in the original language--or in 
editions that appeared around the turn of the 20th century or earlier.

> [Hava Nagilah] is a saddening example of intellectual property
> theft. Read the story below:

How sad a story this is really depends upon how far back you wish to 
go.  As you present it, Idelsohn's song is really a "derivative work" 
from a legal perspective, since it uses a preexisting nign.  Had the 
nign from which he adapted the work been under copyright law, he would 
have been in pretty hot water himself.  But the rub here is that at the 
time, intellectual property was only considered to extend to those 
works which could be written down and registered (ASCAP, for example, 
did not initially include blues artists as members for just such 
reason).  Thus, even if the tune had been created the day before 
Idelsohn first heard it, it was considered Public Domain.  So, then, 
what of "Hava Nagilah" is *his*?  I don't know of anyone who's used the 
"arrangement" you bring up.  The lyrics, perhaps, are his, though 
Nathanson was indeed pretty adamant that he wrote them.  Perhaps it was 
simply Idelsohn's "privilege" of writing down the melody first, in his 
own way.

Finally, to respond to Sholom:
>
>
> But while you are drawing extremes -- let me draw another extreme.  
> Suppose
> songwriter "A" writes a song.  He doesn't know anything about 
> marketing,
> doesn't have connections, so, he just plunks in out on his guitar for 
> his
> friends.  Suppose powerful produced "B" hears the song, gets famous
> rock-n-roll group "C" to record it, and B and C make millions.  A gets
> nothing.  Fair?
>
Depending upon the number of years between when the songwriter plunks 
down his song and when rock group C records the song, it's perfectly 
fair.  (Look at "The Three Tenors" phenomenon for example--they chose 
only public domain selections, i.e. selections that have a definite and 
acknowledged composer but had been around long enough that the 
composers were no longer a source of legal consideration).  But, again, 
the situation is almost always much mushier than that:  What if rock 
group C makes $1000 on its recording, but gets producer B to sign 
songwriter A to a successful studio contract?  Etc., etc.  (On this 
last I don't think I'm particularly disagreeing with your point above.)

The issue here as I see it is that copyright law as it now stands works 
best mainly on a corporate and national level (as it always has).  
Smaller industries--and the Jewish music industry unquestionably 
qualifies as one (or several) of them--frequently operate under their 
own (often implied) "versions" of copyright law that both consciously 
and unconsciously deviate from legislated practices, yet are much 
better in taking into account certain vagaries particular to the 
personal and group interactions of the population in question.  Unless 
these local variations create multi-million/billion dollar ripples in 
the industry overall (such as was the case with mp3 in the college 
circuit), they are more or less left alone. [Even multi-national 
corporations routinely break copyright laws in some markets, most 
famously by giving their latest releases to DJs with the intention of 
having the DJs sample the recordings in public performances, thus 
"illegally" giving the new recordings free publicity.]

The Jewish music industry (or industries) is/are so small that the 
enforcement of existing copyright laws through such methods as lawsuits 
would be laborious, expensive, and perhaps disastrous (though the 
lawsuit method is considered crucial to the creation and maintenance of 
legislation on the inter/national level).

That is why I stand wholeheartedly behind Jeff Klepper's call for a 
conference to discuss copyright in both practice and theory, and 
perhaps (as Adrian has advocated for so long) create among the Jewish 
music community some conventions for using, recording and arranging 
each other's music.  Will a Jewish ASCAP work?  Will we ever be able to 
bypass the Harry Fox Agency for something a little more personal ;)?  
Perhaps.   But in any case, I'm convinced there's a great deal of room 
for debate in this constantly changing, politically charged, 
technologically savvy society, which today must live by increasingly 
all-encompassing and controversial views of intellectual property.  
It's time we--who collectively know where most if not all the political 
and legal grey areas lie in our own music industry--come together to 
think about how we are to negotiate such ideas in a meaningful, 
respectful and acceptably legal manner.

Judah Cohen


PS:  I used as a source for my early discussion of the history of 
copyright Reebee Garofalo, "From Music Publishing to MP3:  Music and 
Industry in the Twentieth Century."  "American Music" [journal], Fall 
1999:  318-353.
--------------
Judah M. Cohen
Incoming Dorot Assistant Professor/Faculty Fellow
Skirball Department of Hebrew and Judaic Studies
New York University
New e-mail address:  jcohen (at) music(dot)org

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