Emotions, copyright and the socio-ontology of music: glocal culture vs world trade
Paper presented at the conference The Emotional Power of Music, Geneva, june 2009
Ulrik Volgsten, Gothenburg University
In this paper I will show how research on music and emotions have consequences for — and
therefore should be paid attention by — such nonmusical areas as economy and law. I am particularly thinking about copyright. This means that I will touch upon research from fields as different as the history and sociology of law, the history of mentalities, aesthetics and ontology of music, so as to finally ground my argument in the psychobiology of emotions and music. The motivation for this multidisciplinary stance is my own interest in music. both as a
passionate listener, as a musicologist, and as a cultural theorist. I feel a deep concern for the ongoing development of music, which under the rule of global copyright regulation turns music from a cultural expression and activity into an investment object for a handful of media conglomerates, which in their turn are more aptly described as a ”rights industry” (McMillan, 2003). I Start with a brief description of the problems that copyright involve, especially as these are regulated by the global copyright agreement of the World Trade Organisation, named TRIPS (Trade related aspects of intellectual property).
There are many types of copyright, and I will not mention them all. According to the forerunner of the TRIPS agreement, the Berne Convention, composers’ rights are divided into an economical right to remuneration (§11bk) and the moral rights to be credited as composer of the music, and prohibit changes and revisions of one’s music. The economical right is alienable, the moral rights are not. That the economical right is alienable often has the consequence that it is signed away by the composer and ends up in the hands of the industry. Economic rights hold until 70 years after the death of the composer. Consequently, this means that composers cannot expect full remuneration until 70 years after their own death. The argument for this construction is of course that the 70 years extension of the right makes the composition (or perhaps better, the composition-as-right) a more attractive commodity on the market of rights, and that the composer can get a better price for his composition (-as-right). Whatever we think of this, it shows that the copyright system is constructed to facilitate the alienation of rights from the composer to the industry. More important in this regard is the TRIPS agreement, which explicitly denounces any moral rights of the composers (art.9 §1). Economical rights are the only rights that count on the global music market, and they are not supposed to stay in the control of composers.
An even more serious problem with today’s copyright law is its threat against the right to freedom of expression. An increasing number of legal cases shows that charges of plagiarism are levelled against use of musical material which in the past would have counted as basic musical building blocks, as musical material. Whereas charges of plagiarism in the past involved entire pieces of music, composers today risk being accused of plagiarism when using short phrases that may have similarities with other short phrases in copyrighted compositions (Demers, 2006).
A related problem that should also be mentioned is the increasing references to artists’ trademarks. In the US, courts have judged it criminal to imitate the vocal styles of Bette Midler and Tom Waits, since their vocal styles are regarded as their trademarks. A recent case of plagiarism in Sweden was likened to trademark infringement by the supreme court (Edlund, 2006). The problem facing today’s composers is a diminishing availability of musical material, which goes together with a growing anxiety to use material that may be copyrighted already. If you aren’t tied up to a company powerful enough to house its own team of lawyers, the mere risk of being accused of plagiarism, of being sued and having to pay the expenses just to show you’re innocent, will be enough for many to refrain from using musical material with the slightest reminiscenses of anything familiar (Klein, 2000). Anxiety of influence ordains originality but the copyright side of the coin burdens creativity with a countervailing cautiousness.
What this means is that the increasingly aggressive copyright regime, as codified in the TRIPS agreements ”enforcement measures” is on the dangerous way of turning copyright into a communication right.
Finally, that copyright controls musical expression has consequences not only for composers
and musicians, but also for the listener, for culture at large. It is often said that our identities to a large part equal the narratives that we weave about ourselves. These narratives aren’t just made up of words. They may also include such nonverbal signs or symbols as music (Shaw, 1994). When these signs and symbols become immaterial, communicated through digital media, copyright becomes a threat against the ”free development of personalities” that are stated by the United Nations’s universal declaration of human rights (§22). Copyright becomes not only a communication right, but a right to to our private and collective identities, memories, a right to culture in the widest sense of term.
Copyright thus affects much more than the economic right to sell musical commodities. As we have seen, the law is constructed to channel these rights away from composers, and into the hands of the industry. The TRIPS agreement poses an even deeper problem, since it doesn’t permit any changes whatsoever in the construction of national legislation that would go against its paragraphs. As a compulsory agreement for the members of the World Trade Organisation, the TRIPS threatens any nation who does not comply to its rules with sanctions. If a country like Sweden should want to change its copyright law in a more liberal direction, the country would face the risk of being sanctioned by other members in export fields other than music, such as steel or paper. The TRIPS agreemement thus backbinds democratic legislation in cultural matters on the national level (and of course also on the international level).
How did we get into this situation, and how can we get out? I will now sketch an argument that strikes against the very ideological basis of the TRIPS agreement, at the same time as it highlights the public legitimation of copyright. The role of emotions in this argument will become clear in a little while.
The TRIPS agreement has been duly criticicized for using a rhetoric akin to that of natural rights to property (Oddi, 1996). The preamble of the agreement refers to its members [I quote:] ”recognizing that intellectual property rights are private rights” [e.o.q.], and [I quote again:] ”desiring to reduce distortions to ... international trade” [e.o.q.] (italics in original): the members of the TRIPS thus ”recognizes” the undisputable fact that rights are private, therefore ”desiring” to overcome the distortions to international trade that might exist. Further down the preamble also states that its signatories [I quote:] ”recognizes ... public policy objectives of national systems for the protection of intellectual property” [e.o.q.], which means they recognize that there may be national public interests underlying the law, such as promoting development, knowedge and education. However, such non-private interests obviously have nothing to do with rights. Thus, what seems to be fairly neutral formulations of the TRIPS turns out not to be so at all.
The rhetoric has a history dating back to the 18th century, and John Locke’s famous argument for the natural right to property. Particularly the way Locke’s argument was adapted by British printers when they tried to take control of composer’s right to printed scores. Whereas Locke was concerned with the ownership of material products, that were brought out of common natural resources through manual labour, one can say that the British printers transferred the argument to the objects that came out of the artists spiritual labour, invested in a common cultural resource. It is important to note here, that the object resulting from this sapiritual labour was the material score. Immaterial objects where unthought of; they belong to the future. Summarizing grossly:, in the 18th century statutory laws ruling the right to copy replaced feudal privileges. In the 19th century laws governing ownership to the printed scores where formulated, whereas we have to wait until around the turn of the 20th century before fully fledged authorship laws enter the scene.
The ”authorship rights” of much of continental Europe and Scandinavia grew out of discontent with the workings of the earlier laws of ownership rights to printed texts and scores. These ownership rights were substituted for by laws referring to musical ”works”. Thus, today’s copyrights are not property rights according to the laws of many of the members of the World Trade Organisation.
Nevertheless, the public legitimation of copyright seems to rest to a large extent on an unarticulated notion of the musical work as an immaterial object. An immaterial object that one can own and which can be stolen. In Sweden, for instance, there has been frequent talk in the mass media about music as one’s ”property” and plagiarism and piracy as ”theft”. For instance, the secretary of the Nobel committee speaks against the public-domain defenders’ ”attacks on artists’ property rights”.
In fact the concept of an immaterial, or idealistic work of music has been regarded as highly problematic in the juridical doctrine of many countries. The sparse use of the term ”work” in law texts (including the TRIPS) is a testimony of this. In Scandinavia a 25 year long debate about the status of the object of protection of the law — ”the work”, that is — ended in a consensus to treat the ”work” more or less as a useful ”fiction” (Strömholm, 1970; Koktvedgaard, 1965). But this was not a reaction against an established view acknowledging immaterial works, it was a reaction against a situation where performance rights on the one hand and ownership rights to printed scores on the other, both referred to a ”work”, a juridical situation which seemed to call for an immaterial object. But the ontic commitment to immaterial works has always been questioned in some way or other.
Despite claims of a historian such as Lydia Goehr (1992), theories about idealistic works are
virtually non-existent in the 19th century — in law, in aesthetics as well as in public discourse
(the names Goehr mentions in this context are, quite notably, Schoenberg and Ives, both as we know composers of the 20th century).
Theories of immaterial musical works don’t show up until the 20th century, with Roman
Ingarden’s ontology of musical works as a pioneering work (Ingarden, 1986). A Babbitt’s or a Boretz’ rejection of sounds and audiences are 20th century phenomena, symptomatic of an art-for-art’s-sake version that has slowly made its way into the layers of collective mentality as a belief in the ”immaterial object” existing independently of any musicians, audiences, independently of being played at all. As such today’s notions of immaterial objects as intellectual property has very little in common with, for instance, a Hanslick arguing for tönende bewegte formen. The idea seems not even to have occurred to an idealist such as E.T.A. Hoffmann. Being also a proffessional lawyer, Hoffmann argued in a legal case against an unauthorized piano arrangement of Weber’s Der Freischütz, that musical compositions cannot be ”extracted” from the material print, the way books can (Kretschmer and Kawohl, 2004). This was in 1823.
The rhetoric that ties property and work-as-object together is a child of the 20th century, however nurtured by the familiar genius of romanticism. It is an ontological metaphor we have come to live by (Lakoff and Johnson, 1980), which has served as a legitimation for copyright law for almost a century by now.
Although it has been a problem child in juridical doctrine, it seems as if the idea of the work-as-object hasn’t been sufficiently challenged until digital technology brought out its informtional aspects in the open. The most serious rejections of the legitimacy of copyright law comes from the practice of file sharing.
I have mentioned Ingarden’s philosophical theory of musical works, and a discussion of the various ontic commitments to the work of art elaborated by more recent analytic aestheticians would certainly be in place here. An idealistic work with multiple instantiability would of course be manna for any copyright proponent shying from Occam’s razor. But since a refutation isn’t necessary for the final point that I would like to make, I will leave the ontology discussion aside.
I will now present an argument against the natural-right-to-property assumptions of today’s global copyright regime. An argument against the view that assigns a natural right exclusively to one and only one party, the composer (who is thereafter expected to sell this right as a commodity). Paradoxical as it may seemat the outset, this argument may in the end prove to be a support for the composers’ rights, both moral and economical.
Whereas the various ontological theories of the musical work usually end up with some idea of an abstract achronic structure as the identificational criterion for the musical work , they wisely do not thereby claim to say anything about the nature of music itself. If we consider what it takes to turn an abstract achronic structure into music — or perhaps the opposite is easier to imagine: what do we subtract when we reduce music to an achronic structure (and it doesn’t matter whether we are platonists, creationists or fictionalists here)? If we consider this I think we can come up with an argument against the hard-core commodification of music that the TRIPS agreement fosters. And this is where the emotions enter the stage.