University of Cincinnati Law Review

Summer, 2004

Article

*1405 WHOSE MUSIC IS IT ANYWAY?: HOW WE CAME TO VIEW MUSICAL EXPRESSION AS A

FORM OF PROPERTY

Michael W. Carroll, Associate Professor of Law, Villanova University School of La

 

72 U. Cin. L. Rev. 1405

 

 

 

Copyright 2004 University of Cincinnati; Michael W. Carroll

Reproduced with permission

 

 

 

 

I. Introduction

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Necessarily undergirding the charge of theft is the premise that music is a form of property-an odd kind of property that can be "stolen" by unauthorized reproduction and distribution. Among the millions of Internet users exchanging music files, some agree that they are in effect engaged in looting. Many, however, deny the charge. Some declare that "information wants to be free" and that music, like all other forms of digitized cultural expression, no longer can be or should be treated as *1407 proprietary information. Others accept the premise that music is a form of property but deny that their activities infringe the rights of property owners. A third view looks at music as a form of shared property. On this view, creators have some rights to control the initial sale and distribution of music, but buyers also have rights to use and "share" the music they have purchased.

 

This conceptual conflict over music's status has been brought into relief by changed material circumstances. Finding a resolution to this conflict and reflecting that resolution in law are fundamentally challenging issues for our society. As part of a larger project to address these issues, this Article proceeds from the premise that a better understanding of how and when proprietary concepts came to be applied to music will aid the effort to find a resolution to the current conflict over digital music. Most readers likely have an intuitive sense that people have produced music without copyright protection for a long period of time. That intuitive sense is correct, but a more detailed understanding of how and why those in the West came to treat musical expression as a form of property is necessary to evaluate whether those reasons remain persuasive.

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Part III shows that musicians did not make proprietary claims in relation to music for most of the history of Western Europe, from classical Greece to the end of the sixteenth century.Even though trade in books began during ancient Greece and has continued, with periodic interruptions, until the present, and even though the Greeks established *1409 a system of musical notation, music remained part of an exclusively oral tradition until well into the Middle Ages. In addition, although musical labor has been a feature of human existence from the earliest of times, composers made proprietary claims to their compositions only episodically during the latter Middle Ages, and consistently only during the Renaissance with the advent of music publishing. In the ancient world and in medieval Europe, music was thought to be divinely inspired, and it circulated as a form of background knowledge stored in the minds of performers and audience.

 

During the Renaissance, the creation of printed music gave rise toproprietary claims over these musical objects by publishers and, in rare cases, composers. These claims received legal vindication in the form of the printing privilege, a royal grant of exclusive rights to use a particular printing technology or process, or to publish specific classes of works or individual works. Under these legal arrangements, the property was the profits from the distribution of printed music, and that property belonged to the publishers, who frequently made risky and substantial investments in bringing printed music to market. This Article highlights one prominent exception-the case of Flemish composer Orlando Lassus (di Lasso)-who, in his capacity as composer, *1410 successfully petitioned the French and Burgundian monarchs for the privilege to print his entire repertoire. Because legal scholarship has focused on the rights of literary authors, most histories of copyright do not recognize the Lassus case as a precursor to legal grants of rights to authors.

 

Insofar as the social role of professional musicians is concerned, society appears to have valued the benefits from having specialized, professional musicians and has thus found a variety of means to support and finance their specialized labor, including slavery, patronage, and market relations. For most of the period covered in this study, musicians were performers first and composers, if at all, second. The roles began to change during the Renaissance when certain ruling elites had sufficient demand for new ceremonial compositions to support specialized composers. The information presented indicates that even if the Internet were to fatally undermine the profitability of distributing recorded music, we are likely to find ways to financially sustain a class of professional composers and performers. The challenge for our society is to evaluate whether copyright law remains the best means of doing so.

 

[I]n societies without musical objects, control over musical labor-through slavery, patronage, or guild restrictions-was in some respects control over music itself. Music publishing and the growth of mercantile society changed the focus of control from control over musicians' mental texts to printed, tangible texts. The tangibility of printed music made property rights claims in the represented intangible work more easily conceivable and palatable. The "property" rights in these texts owned by composers and publishers largely were, as a practical matter, viewed as rights against competitors.

 

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Proprietary concepts were extended to printed music in response to *1411 specific economic conditions, which have changed dramatically over time. Digital technology has changed, or can change, the economics of music production and distribution. Because economic considerations supply the justification for copyright law in the United States, changed economic conditions should lead policymakers to re-examine the scope and content of copyright law as applied to music. Finally, the history shows that musicians throughout the period discussed in this Article freely borrowed from existing musical works when creating new works. Digital technology facilitates such borrowing, in music samples or mash-ups, for example. Modern copyright rules that greatly restrict musicians' freedom to practice this tradition rest on questionable justifications and likely require revision.

 

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[T]he evidence shows that many of the claims about the sanctity of musical property are overstated. The property-rights model for music has had a profound influence on the financing of musical production and distribution, beginning in the late fifteenth century and intensifying in the twentieth century. But people have been making music throughout recorded history. More importantly, throughout most of this period society has valued the services of professional musicians enough to financially support such a group without reliance on property *1412 rights in music. Removing copyright protection from musical works and sound recordings would not eliminate professional musicmaking. On the contrary, historical evidence strongly suggests that demand for the services of a class of professional musicians and composers would be sufficient to induce society to find alternative means to enable this group to practice its art. But we have good reason to think that the amount of music and the quality of music produced would be different from that produced under our current system. Consequently, the history demonstrates that arguments about whether to save or reform copyright in music must center on copyright's relative ability to encourage the production of music and to finance the livelihoods of specialized musicians.