Humanising Music and Copyright

“… copyright stands as an unknown continent that music researchers must explore …” (Franco Fabbri 1993:159). 

“[Clearing the samples] is very tedious. We have to sit there and basically break out every single component of every track that we do and make a list of the sources for everything. We go through every little blip of sound and decide what’s significant enough that we need to contact the owner. From there, it’s a whole bunch of lawyer craziness” (Michael Diamond of The Beastie Boys, in Steuer 2004:186).

 “It is becoming increasingly harder to be an ethnomusicologist with a tape recorder today than it used to be because people are always suspicious, even when we have no commercial intentions”  (Anthony Seeger, cited in Lin-Eftekhar 2002).

In the disciplines of Ethnomusicology, Musicology, and Popular Music Studies, it’s hard to operate in ignorance or apathy about “music and copyright” anymore (see Frith and Marshall, eds. 2004). The disciplinary imperatives of permission contracts potentially foster and facilitate a relational architecture of distrust as we engage with people in our fieldwork. Copyright concerns are apparently having to become increasingly important to both ourselves and the people we work with. Confusion over what does or does not constitute “fair use” or “fair dealing” in relation to copyright restrictions reminds us of the quiet behavioral gravity of normative legal instruments in our research and teaching. It tends to be supremely important to us now that we protect “stuff” as we seek to respect people … and obey the Law.

Law, intellectual property, and copyright have, in only a few years, assumed unprecedented prominence as themes in our lives. Rosemary Coombe notes that what people imagine “the law says” may be a shaping force in the practices of our lives, even though the standards and sanctions involved may be self-imposed or misinformed: “People’s anticipations of law (however reasonable, ill informed, mythical, or even paranoid) may actually shape law and the property rights it protects” (1998:9). Often what is most important is not so much the letter of the law as people’s understanding of it, and our reactions to legal meanings based on that understanding. For example, how many of us respond to the declaration of copyright restrictions in university libraries with detailed study of the law? How many of us simply ‘get with the program’ in an attitude of benign obedience, ignorant of legislation and deferent to restriction? Law, then, can often be understood as “a … diffuse and pervasive force shaping social consciousness and behavior” (12). Neither just a collection of rules, nor a collection of social effects, law can be understood, as “a complex interpretive activity, a practice of encoding and decoding social meaning that merges imperceptibly with rhetoric, ideology, “common sense,” economic argument (of both a highly theoretical and a seat-of-the-pants kind), with social stereotype, narrative cliché and political theory of every level from high abstraction to civics class chant” (Boyle 1996:14).

I write this in my capacity as an ethnomusicologist. In 1992 the field of Ethnomusicology was criticized from within for failing to recognize the need for substantial practical and theoretical engagement with issues of law, and specifically with issues of “music and copyright.” Anthony Seeger noted a “theoretical predisposition to ignore juridical concepts related to music in our research, an uncritical (and perhaps unconscious) re-elaboration of the concepts of twentieth century copyright law in our writings, and a lack of intellectual engagement with the globalization of the world’s economy and its implications for the objects of our research” (1992:345-346). By neglecting these issues, Seeger stated, ethnomusicologists were impoverishing their discipline. They would increasingly find it difficult to contribute significantly to dialogue about musical practices which were increasingly being shaped by the very processes that ethnomusicologists seemed to be ignoring. In 1993, Franco Fabbri was able to note that “copyright stands as an unknown continent that music researchers must explore” (159). Seeger again, in 1996, reiterated the failures of musicologists and ethnomusicologists to consider the implications of local, regional, national, and international legislation for their research in the face of “the transformation of all music to potentially for-profit “intellectual property” throughout the world” (88). He argued that this academic negligence ran the risk of compromising the relationships that ethnomusicologists so delicately foster while doing fieldwork: “Our failure to act both intellectually and practically in this area can only vitiate our analyses, damage our reputations, and make us suspect in the communities in which we wish to work” (ibid.).

Any failure in this regard would not be without consequence. Law, legal doctrine, legal practice, and, by association, the role, activities, and expansion of bodies such as The World Intellectual Property Organisation (WIPO) continue to play a vital role in the production and generation of meaning, power, and knowledge in the social interactions of our lives. By accepting the meanings that structure discourses of law, intellectual property, and copyright, we also allow those same meanings to structure our expectations and our social relationships. Scholars working within the Anthropology of Law (see, for example, Falk Moore, ed. 2004; Darian-Smith, ed. 2006; Donovan and Anderson 2006), the Sociology of Law (see, for example, Cotterrell 1984; Aubert, ed. 1969) and Critical Legal Theory (see, for example, Hutchinson, ed. 1989; Fitzpatrick and Hunt, eds. 1987) have drawn attention to these processes. Legislation, in any jurisdiction, consists of a set of prescriptions which specify the way in which legal subjects ought to behave. Law thus assumes a very palpable presence in our lives.

Research in the area of “music and copyright” can only be enriched by humanised and humanising perspectives. Despite the exponential growth of this increasingly contentious, and increasingly bizarre area of study, to a large extent discussion continues to stagnate in and around issues of access, control, allocation, ownership, and protection. From digital file-sharing to folk and traditional musics, “Who owns the music?” has become the prime question, with “How do we protect the music?” coming a close second. “What are we allowed to do with the music?” and “Where does the money go?” follow close behind. Research, then, has been dominated by the exegesis of litigation and the analysis of economic conditions, as people trace the movement and management of ‘things’, and follow the money. That can be very important, but scholarly debate seems largely to have stalled as a series of descriptive discussions about the management of legally-constituted musical resources rather than tending towards more explanatory approaches that might allow us to understand the impact of discourses and practices of intellectual property within the broader qualitative, social, and emotional dimensions of musical life. The ‘stuff’ becomes all important, people’s personal stories tend to be somewhat less so.

This explanatory weakness, this overwhelming emphasis on commodity transaction, would be for many deeply redolent of the general character of orthodox legal discourses. The apparent separation of law and, in particular, legal doctrine from the contingencies of social and political life is, in fact, one of the prime assertions of orthodox legal theory and one of the most influential foundations of legal practice (Hutchinson, ed. 1989; Fitzpatrick and Hunt, eds. 1987). For many people, law, the doctrines of law, the workings of law, the institutions of law, the concepts of law, seem to be separate from, and only tangentially relevant to, the everyday interactions of their lives. This is largely because law, and practices legitimated by law, are often characterised by specialist legal practitioners as autonomous, self-sufficient, value-free and politically-neutral (Blomley 1994), a strategy referred to by critics as “legal closure”.

As we enact the discourses and practices of copyright and intellectual property in our work, we can be assured that, in very practical ways, the workings of law are not ‘neutral’. Unger would argue that the great power of law is that “it enforces, reflects, constitutes, and legitimizes dominant social and power relations without a need for or the appearance of control from outside and by means of social actors who largely believe in their own neutrality and the myth of legal reasoning” (1986:5). As ethnomusicologists we have this “power of law” at our disposal insofar as we claim it and that claim is accepted by others as valid. One of the achievements of strategies of the aforementioned process of “legal closure” is that “The rule of law … appears rational, benign, and necessary” (Blomley 1994:9). As Peter Jazsi has commented: “The whole structure … is grounded on an uncritical belief in the existence of a distinct and privileged category of activity, that generates products of special social value, entitling the practitioners (the “authors”) to unique rewards” (1991:466).

Law, for the most part, then, “appears as an arcane world of professionalism centered on a body of esoteric knowledge which is intimidating to the uninitiated in its bulk and obscurity” (Cotterrell 1984:17). This is perhaps especially the case for copyright discourses, a complex nexus of legal, economic, and literary doctrinal orthodoxies sustained by a declaratively erudite register of concepts and productive inclinations: property, rights, authorship, public and private interest, public and private space, utility, consumption, production, incentives, possessive individualism, originality, creativity, freedom, and progress. When esoteric knowledges of music scholarship, always-already sustained by many of the same Euro-American orthodoxies, are added to the mix the result can be a heady maelstrom of mutually-reinforcing and profoundly-abstract discourses of obedience, regulation, and resource management. Little wonder that people might consider “music and copyright” to have little relevance to the personal politics of their everyday lives. The gravity of legal closure tends to invite political detachment, facilitated ably by enthusiastic analysis of sonic minutiae and the intricate management of musical commodities. We hardly need to turn to the likes of Marx, Lukacs, Simmel, or Weber to remind us that relationships between people can be easily and formally rendered as relationships about ‘things’ and money. The more approaches to “music and copyright” approximate a sort of musical accountancy, or an exercise in advanced legal classification, the more our attention can be quietly drawn away from the analysis of personal experience, social context, and social change.

This is important, for as the discourses and practices of law increase in technical complexity, and are deemed by many people to be more and more irrelevant to everyday concerns, they tend to intrude more and more into our lives as “increasingly detailed regulations relate [the law] more and more concretely to particular narrowly defined situations and relationships” (Cotterrell 1984:186).  Discourses and practices of intellectual property and copyright have long been associated with expansionary dynamics and with processes of accelerative commodification. Bettig (1996) would argue, for example, that it is almost impossible to separate intellectual property from its role as an instrument of commodification within capitalist systems. It has been shown that the development of capitalism and intellectual property have been concurrent (Rose 1993, Woodmansee and Jaszi 1994). The appearance in the eighteenth century of ‘things of the mind’ as transferable articles of property matured simultaneously with the capitalist system (Jaszi 1991). It is no coincidence, then, that an accelerative, commodifying, expansionary logic should infuse the discourses and practices of intellectual property. But effective legal closure and an overriding emphasis on commodity management both serve to depoliticize the climate. They systematically occlude particular characters of personal experience, social context, and social change, immunizing against critique of the expansionary character and doctrinal representations of law and legal practice by allowing both expansion and doctrine to remain unremarkable, invisible, and analytically unavailable.

Discourses of commodity management are fostered and facilitated by the persistence of the “musical work” as a philosophical and legal concept. The concept provides much to support and little to challenge resource-management models in music and copyright studies. In recent years, sustained attention has been drawn to various discursive and philosophical constructions of the “musical work” by Lydia Goehr (1992, 2000), Ingrid Monson (1996), Michael Talbot et al (2000) and many others.[ii] In discursive practice, the musical work remains for many the central resource, the central transactable commodity of “music and copyright” discourse. I don’t wish to declare “the musical work” or considerations of access, control, allocation, ownership, and protection irrelevant or unimportant. My emphasis, indeed, is a direct response to the real importance of these themes in “music and copyright” discourses. Access, control, allocation, ownership, and protection remain vital themes with which to make sense of the management of works as “musical resources”, and they remain crucial concerns in the combination and recombination of sonic motifs, phrases, and tunes. Such ways of making sense of things matter to many people. As Reinhard Strohm notes, for example, “The work-concept … is as ‘real’ as any aesthetic idea can be, and many generations of musicians have believed in it” (Strohm 2000:128). Often taking someone to court in direct adversarial engagement over the “things”, the “works”, might be the only obvious option that people have available to them in the context of litigation (see Soocher 1998). From a strictly legal standpoint it sometimes seems there is no other way to make sense of the issues. What I do seek to do is to underline, however, that, as analysts, we can do better. We can supplement or even supercede this narrow, enclosing, and often dehumanising focus on property, rights, musical works, and sonic form. We can move towards analysis that is more socially-sensitive to the “absences and inaudibilities in contemporary cultural spheres” (Coombe 1998:9), more sensitive to particular characters of personal experience, social context, and social change.

As copyright and intellectual property become more and more familiar aspects of discursive and musical landscapes through increasingly technological, standardized, specialist, universalised, and universalising practices, those same practices are increasingly regarded as legitimate, or, at least, unremarkable. The solid status of copyright and the justifications for all practices relating to copyright are taken for granted by many of us not only as the way things are and the ways things ought to be, but as the way things must be. Increasingly, as music scholars we often find ourselves in climates where we place the discourses and practices of intellectual property and copyright beyond debate, acquiescing, perhaps unknowingly, perhaps enthusiastically, to rather grandiose narratives of progress, authorship, necessity, and inevitability. In small ways, in our interactions with colleagues, students, and the people we work with in the field, the dictates of legal doctrine are increasingly taken as given, if not absolute. As this happens, the details and internal complexities of doctrine, the features of sonic form, and the politics of ownership can become the focus of inquiry rather than the social, political, personal consequences of acquiescence to doctrine as doctrine. When we can so easily allow the influence of absolutes to cascade throughout our lives, it is important that the interpretive practices of law be deconstructed and revealed as interpretive practices. Hardened narratives of law, intellectual property, and copyright suffuse the practices of intellectual property organizations, universities, academic departments, and libraries. From a scholar’s perspective it is perhaps more helpful to consider that the orthodoxies of “music and copyright,” whether “legal” or “musical,” do not simply reflect “the nature of things.”

It is important to remember that every situation concerning disputes about “music and copyright” serves as a nexus for personal stories and an opportunity for understanding complex emotions, meanings, and relationships of power, authority, and resistance. Focusing on the specificities of history and on the particularities of circumstance allow us to disclose social and political aspects of “music and copyright” debates as, importantly, always-already humanized encounters.  Legal structures are not just to be found in legislation and the workaday rhetoric of lawyers. Insofar as music scholars also acquiesce to the discourses and practices of intellectual property and copyright, or work unquestioning with those who do, we contribute to the privileging of the legal as a key structuring value in the ways in which we relate to each other.

Humanising approaches to “music and copyright”, for me, means challenging legal closure to look at the broader social and political context of debates about access, control, allocation, ownership, and protection, in terms of ‘what is going on’; in terms of particular experiences of authority and power dynamics in particular situations: What’s important, and to whom? Who gets to say? Who is dealing with whom and on what terms? Who is claiming what, and how do they justify or legitimate what they say? How do people feel about what is going on? How do people respond in different ways to situations in which copyright is an abiding concern? What principles are people willing to defend? Is there a point beyond which people in a situation feel unable to challenge the status quo on account of the pressures and certitudes of necessity and inevitability, market and law, national and international government? Is there more at stake than scrambles over who owns what and how much we will allow others to do? By accepting copyright, what might we be allowing to happen to the character of our relationships with each other? To ask such questions is to assume a position of some skepticism with regard to claims that are often made to the natural and unchallengeable status of copyright law. It is helpful to challenge those ideas which are accepted as ‘given’, self-evident, ‘common sense’, ideas that are “so obvious that the question of their origin may seem unreal because to not accept them seems unthinkable” (Cotterrell 1984:121). It is precisely because ideas associated with law are largely unquestioned that they must be examined as having developed in and through particular social formations and social practices.

It behoves us to take responsibility for our own education with respect to copyright law and its relevance to the practices of Ethnomusicology, Musicology, and Popular Music Studies. As R. M. Cover has written: “Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live” (1983:4-5).

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[i] More famous, perhaps, is the work of Foucault in this regard. See Burke ed. (1995) for this and other key contributions to discussions on “authorship”, and Burke (1998) for an extended discussion of the work of Foucault, Barthes, and Derrida in this regard. A collection of essays more focused on the relationship between authorship and copyright can be found in Woodmansee and Jazsi, eds. (1994). A useful summary of various approaches to authorship and copyright can be found in Halbert (1999). For an interesting discussion of “originality” in relation to copyright see Sherman (1995). For a discussion of authorship, ownership, and intellectual property law see McLeod (2001).

[ii] In 1992 Goehr, for example, challenged the naturalized status of the work-concept in musical discourses, noting that, “speaking about music in terms of works is neither an obvious nor a necessary mode of speech, despite the lack of ability we presently seem to have to speak about music in any other way” (243).

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