What is wrong with author's rights

by Jos Kunst (1988)

Lecture given at the symposium "The socio-cultural position of contemporary art music", October 6th, 1985, Amsterdam, Netherlands.
This is an electronic version of an article published in Interface, Vol. 17 (1988) p. 139-143. Journal of New Music Research, the continuation of Interface, is available online at https://www.tandfonline.com/loi/nnmr20.

Abstract. A critical position is taken with respect to the (largely, if not totally) implicit assumptions embodied in the answers to the ownership question that today still determine the legal and financial relations between art users: who exactly can own what, and with what consequences? Most notably, the status of the composer is argued to rest on the highly questionable assumption that the artistic relations between musicians have not essentially changed since the 19th century.

My central thesis will be the following. Authors' rights for music, as they stand, and taking into consideration the cultural facts of today, are a relic. They are inadequate because the concepts invested in them do not capture the workings of today's musical practices. They embody essentially backward, or lazy, ways of thought. This may at least partly be due to the fact that legal conventions are based on precedent and custom - one could say, with some justification, that all law is based on custom, that it just is custom suitably regimented.

Now the so-called creative arts may be said to constitute a dangerously moving ground for legal custom to base itself upon. They are essentially characterized by the transgression of conventional laws, and by a proposal, implicit in that, of new precedents meant to generate new conventions which in their turn will be challenged. Even quite central concepts are open to transformation by such processes, and are therefore an unsafe base for legal generalizations. An obvious example is to be found in the artistic status of pieces, of musical works, as compared to their legal status. In many instances our culture has been veering away from that central concept, and the language, the vocabulary, be it technical or non-technical, has not yet sufficiently registered that fact. (Here I am not only, and not even in the first place, referring to "serious avant-garde" practices, however much these may have contributed in their own field to the dismantling of the composer's authoritative role.)

The avant-garde just mentioned, let us call it the composers' avantgarde, is, in the eyes of many, the only one in existence, or worthy of that name. Here is, I take it, another important change the culture has gone through in, say, the last two decades, and which deeply affects the centrality of the composer in the musical "scheme of things". I am referring to two other kinds of avant-garde movement that have more or less recently come into existence and the musical workings of which are essentially different from those of the traditional composers' avantgarde.

The first of these is found in what is called the "historical practice"; this practice, according to current vocabulary, is applied to "old music" which in turn only means that the composers are old ones. It is essential to see, I think, that what we have here is an important musical avant-garde movement of the 20th eentury, with all ordinary paraphernalia that characterize avant-garde movements generally: the claim that here is the way to music's future, the authoritarian intolerance towards older tastes, the proselytism, the "exclusive band of the chosen" destined to be followed at a later date by the bulk of the culture's adherents, and so forth and so on. Their stylistic practices are, certainly for the mental and "spiritual" contents involved, and also, I believe, for the sounds they make, entirely new and characteristically 20th century. The revolution they represent is a players' revolution, the creativity involved is a players' creativity; and what many of today's music lovers are unaware of, I think, is that important parts of our music culture have come to depend for their renewal on players' creativity and players' revolutions. The composers'part is either kept constant, as in the case of new versions of well-known works, or deemed unimportant, as in the case of those specializing in third-rate composers. Obviously, all this is entirely feasible: there is no reason why a player should not be a complete musician, and there are other cultures that we know of where composers do not even function as a separate cultural entity. Something analogous may be happening to our own 20th century "classical" music, but we may be confident that no legal machinery will take any steps to acknowledge such a possibility, at least not of its own accord. And will the composers - themselves interested parties - welcome the "historically" minded players as their new colleagues, and share some income with them?... Whether we like it or not (personally, I confess that I don't, but surely my tastes are no legal matter) Brüggen and Harnoncourt are present-day variants of Beethoven, at least for important subgroups of the culture. Their legal status, however, in no way reflects that fact. [1]

A second avant-garde which has not been adequately acknowledged by, let us say, our kind of people, is the rock avant-garde. (This one I like rather more, I am happy to say.) It surely can no longer be dismissed as just youth music; it obviously cannot be dismissed, in any acceptable sense of the term, as non-serious; it has all the characteristics, mentioned above, which make it a very real avant-garde (or even more than one of them) in the fullest possible sense of the term, and it is very much alive into the bargain. Here also, we have a players' music: as a rule, groups file their products as collective compositions, with three or four composers per item. Here also, so-called "musical works" do not function as they did in, say, l9th century "classical" music; instead, a "sound", or style concept, is proposed and embodied in a number of successive recordings. There are no scores: so-called "song-books" often totally fail to capture the essentials of a given sound or style. Nevertheless, these essentials do exist; they are picked up by listeners and new generations of players alike, and as a result we have a musical culture (or subculture, as the case may be) where music in its recorded form provides the bulk of its objective musical memory content.

How does legal machinery fare with respect to this part of our music culture? Perhaps not so badly, precisely because of the inadequacy of the philosophy underlying it. Money flow is regulated through the producers of recordings, and musicians sell their products to these on a kind of shared profit basis. This leads to commercialism, it is true; and the avant-garde part of rock music sadly lacks the special care and attention that, in view of its enduring fertility, the culture needs. On the other hand, borrowing of sound and style, and thus the propagation of the culture's content, goes on uninhibitedly. The essentials of the music are, in effect, shared and public goods.

This brings us to the most central part of our thesis. Borrowing, simply taking the good things where you find them, is the culture's lifeblood. Not exchange; culture is, at least on the level of its small-scale events, an asymmetrical affair. Our school system just forces it upon children, even on those who do not want it, and I think that is quite in order. Now an important part of the trouble stems from our way of applying the economic, the exchange model to the way the culture works. Thus money and, for instance, parts of music get into an uneasy exchangeability relation, which, in trying to solve its problems, only creates more and more of them. Thus, some parts of the music are "ownable", possible property, and others are not. Thus themes, being the identifying memory labels of complete works, may not be borrowed with impunity, while style and "sound" may. I think this is clearly inadequate, or insufficient, with respect to the variety of cultures now present in music. One could perhaps argue that in rock music aspects of "sound" are more personal, or group specific, as the case may be, than themes. An informant tells me that in order to get his money an Indian composer living in Holland just files a raga; after all, he must file something. Luckily, no court cases are likely to arise about people borrowing his ragas. That would be a real mess.

Now there must be no misunderstanding about the link-up, always present in modern western culture, between any finished product and the name of who produced it. Our culture always labels its finished cultural products by referring to their origin. I have no quarrel with that, and I even think it is a very good idea. Therefore anyone presenting someone else's work as if it were his own, anyone misrepresenting in any way someone else's work, must be stopped. But this has nothing specifically to do with author's rights, it is purely a matter of libel laws and laws against lying and spreading false information in general. It is important to see, I think, that the labeling of a work with an author's name belongs to the realm of information-with-a-truth-claim, and is therefore subject to all and any laws pertaining to that, whereas, let us say, the internal structure of a work of music, instead, belongs to the realm of information with no truth claim attached to it. I do no think that any legislation should hem in the spreading of that kind of information.

It is true that before the age of photo-copying machines and cassette decks there was a scarcity of information bearers. The absence of photo-copying machines and cassette decks, just as their presence now, is no more than a piece of technological circumstance. It provided scarcity and therefore could be economically exploited. Now, it is difficult to see in what respect scarcity is more natural or more just than, say, unlimited availability of information. After all, the air we breathe is, as yet, an unexploitable commodity, and no one's sense of justice is offended by that fact. But, as we know, lawyers are just conflict managers, and there have been proposals to dampen the conflict brought about by the availability. of copying machines and cassette decks, e.g., by imposing special taxes on them; I mean on the machines themselves. I think this idea is not only inelegant, but also wrongheaded and unjust.

The culture obviously needs to be re-thought from time to time, and it is wise not to let the legal experts flounder about on their own in such difficult matters. But not only lawyers get into trouble. Even art specialists such as composers are at risk, provided they are sufficiently blinded by their immediate need for survival as a separate cultural entity. There have been proposals, and even practices, I am told, in which the repertoire of the public domain, say Beethoven, is exploited in favour of those considered to be his cultural heirs, viz., present-day so-called "serious" composers.

I think this is really nothing more than a matter of prejudice and cultural shortsightedness - I absolutely fail to see why among all those who are bringing about the music's renewal today, precisely these people should be singled out to be Beethoven's heirs. Something should be made somewhat clearer here, ideas should be sharpened and made more specific, instead of being just propagated on the strength of traditional vocabularies. Tomorrow, if I am well informed, contemporary art music will be contrasted with non-contemporary art music and with contemporary non-art music. I would love to hear, e.g., why rock avant-garde groups are non-art; what is the precise art concept involved here? If they are art, then have we thought out the consequences?... Also, I would like to have explained to me what is so non-contemporary about Brüggen or Harnoncourt. Is it their use of old materials, such as Beethoven symphonies? But does not everybody use old materials? Surely, the traditional myths about the avantgarde using only new materials is not taken that seriously any more?

I have finished. I think new serious music is in serious trouble. But I also think this trouble is very often grievously compounded by composers entertaining false hopes about their being something like the natural heirs of Beethoven, to the exclusion of all others.

1 It is interesting to note that the three main parameters in which their originality is deployed, viz., timbre, intonation, and what could be called "micro-rhythm" are also quite central to pop music, and that, moreover, they constitute well-known lacunae in the theory and practice of traditional music analysis.