An introduction to an unruly phenomenon
Copyright is a widely used but little understood term. Many artists and performers shy away from it because they are afraid that the created work will not be sold or performed; users, on the other hand, are afraid that they will have to pay for something they do not know and where there is no guarantee that the art will be appreciated. After all, artists are recognised cross-thinkers, users are recognised misers, aren’t they? Art in itself and the economy behind it can occasionally get in each other’s way, especially at a time when the “market”, “exploitation” has become an unshakable starting point. Copyright, however, is a regulating factor, for the artist to be assured of a regular income, for the user to be sure that he will also be able to enjoy art again next time.
This article does not intend to be a legal document but an introduction to copyright as it is applied in music practice. Although this was written on the typical Dutch situation, due to the EU regulations this is also generally applicable with local varieties in legislation within the EU.
The origin of copyright, a background
The term “author’s rights” is currently less common than the term “copyright”. The background is a simple one: copyright was largely developed from the classical performing arts, (music) theater and classical music. Copyright is the term entrenched in Anglo-American culture and associated with the now dominant popular, especially post-war culture. When it comes to the exploitation of music (which is largely what popular culture is about) it is a correct term, to understand the laws and regulations and to gain a broader understanding of the general application, only author’s rights would be sufficient. However, since the word copyright is generally used in all situations, we’ll keep to this, but bear in mind that this replaces in this article in all cases author’s rights.
A composer like Carl-Maria von Weber (1786-1826) regularly complained that his scores were being copied and resold by music dealers, however without receiving any financial compensation. Especially his voice was heard: he was from noble background and still is seen as the founder of modern opera since the premiere of ‘Der Freischütz’ in 1823.
Giuseppe Verdi (1813-1901) was another composer who was heard in his call for more protection. His music was not only embraced by its publisher, Casa Ricordi, established in Milan since 1808, but also protected. Initially, Verdi’s scores were always hand copied for the various performances in Europe, but gradually Verdi developed in collaboration with Giulio Ricordi (1840-1912) a system in which scores were not copied more often than necessary, imprinted later. A rental system of sheet music for multiple use in theaters was born. This gave Verdi and Ricordi more control over their operas as the performances grew in popularity.
Later it were Franz Liszt (1811-1886) and Richard Wagner (1813-1883) who shaped the more commercial concert practice (further development of paid admission tickets, in the Venetian theaters – foremost La Fenice – already common practice) and thus opened up the way to even more control over their compositions, both music theater and concert works.
The dates mentioned are of specific importance to indicate the course of development. 1886 was a pivotal year in the field of copyright. In Bern, Switzerland, an international, European conference took place at which the resulting covenant has gone down in history as the Berne Convention. This can be seen as the foundation of international copyright law as we know it to this day.
The most important element within the Berne Convention (Art.5, paragraph 1) says: “Copyright arises automatically at the moment of creation, no formality is required for that.” For creative artists, but also for other creatives such as architects, designers, journalists, developers of computer programs, this means that you do not have to officially record what you have made in order to assert your rights to it. However, it is useful to be able to demonstrate that a work is yours. To this end, many organisations have been set up to protect the copyright of their members and stakeholders. In the Netherlands, this includes the Buma association. There is no obligation to enlist, but it is strongly advised to do so, especially for a composer signing a publishing contract.
Copyright practice, an unruly phenomenon
When you see copyright as a regulating mechanism that has been working for more than a hundred years, ensuring that its impact in an economic sense mounts to a significant percentage of the Gross Domestic Product per capita (culture alone in the Netherlands values about 4%, the entire creative industry measures at least double), the conclusion is that this whole system contributes to our general prosperity. Why, then, is it widely perceived as a bad form of tax payment, something you should avoid or at least bargain for? Not only theaters and theaters will do everything they can to reduce their copyright share to barely acceptable proportions, artists themselves also want to try to avoid copyright regulations off and on. It even went so far that the VSCD, the Association for Theater and Concert Directors, expressed in official publications and through lobbies their dissatisfaction with the share of copyright that theaters had to pay. The points of view have now become much more nuanced and the Fair Practice Code is fully embraced. Established composers sometimes protest loudly against collecting performance rights in their name when it comes to music theater or multimedia productions. Isn’t that biting the hand that feeds you?
In addition, the internet has established itself as a phenomenon in our society. It is always suggested that the content would be available for free. Not just channels such as Vimeo, YouTube and SoundCloud can be visited free of charge, streaming services such as Spotify or Deezer also have, in addition to paid access, an open part that does not require payment. Sheet music can be uploaded and downloaded from a website like IMSLP / Petrucci Library. This further encourages the “free music” suggestion. However, there is always someone who pays the bill. Internet in itself is not free, providers will send their invoice. The maker, however, is failed because he doesn’t get compensated financially for the music he produces. That is why we are constantly working on agreements between the copyright organisations and streaming services.
One of the answers is that this is a combination of modern consumerism with an emphasis on exploitation, adding together the economic trading principle of getting as much commodity as possible for the lowest possible price. In the rebellious 1960s and 1970s, any form of exploitation was resolutely rejected as “commercial”. Add to this a mentality that dates back to the 19th century, where it is assumed that the fading artist is sitting in his icy-cold attic room working on his ultimate masterpiece while all this suffering becomes visible in this masterpiece to the shuddering and pleasure of the audience. This may be a bit exaggerated, but this is not as far from reality as seems. Public and artist hold each other in a codependent relationship, at least, this is how a relationship therapist would describe this.
Only recently, during the last Buma Classical Convention in the Tivoli / Vredenburg auditorium in Utrecht in 2017, it was openly admitted that there was a poverty trap as a result of the umpteenth round of cutbacks and that musicians (not just the Ragazze Quartet, performing during the convention, but also composers) somewhat smirkily admitting that they as well participated in free concerts, often lunchtime concerts organised by concert venues. This is another answer to why paying / receiving copyrights is met with so much resistance. After all, since the early 1980s, cuts have been made to art and culture without interruption, even if this was not prompted by economic malaise but by political choices. The transformation of the Dutch orchestral system in 1980 was the kickoff to a continuous austerity drive that continues to this day. Due to this ceaseless stream of cutbacks, we have come to regard this as a normal situation. Art should not cost anything, but must yield a lot. However, no cuts are being made on copyrights, given that these are direct income for the creators, the authors. This makes the difference obvious. Between the ever declining income there is a fixed, stable expenditure item: copyright. This cannot be ignored, simply because it is cast in laws and regulations. And that other stable item of expenditure is formed by the salaries of the people who are permanently employed by venues, orchestras and other music organisations.
How does it work and why? An analysis
In the Netherlands there was already a thoroughly designed Copyright Act (Auteurswet) in 1912; this is invariably referred to as Aw. 1912. Shortly afterwards, in the same year, the Netherlands joined the Berne Convention. Article 1 of this has been unchanged for over a hundred years because this is the core of the law and also explains clearly what this right is, what it is about and to whom it applies, a brilliant formulation:
Copyright is the exclusive right of the maker of a work of literature, science or art or his successors in title to make the work public and to reproduce it, subject to the limitations laid down by law.
It is good to analyse this text thoroughly, as it reveals a great deal of what is directly applicable to everyday practice. Starting with “the exclusive right”. That can be interpreted literally, it excludes all others apart from the maker himself. In other words: the maker ultimately decides, no one else can enter into it. By “a work of literature, science or art” is meant its objective existence, original, new, not made by anyone else than the one who claims the work as his own. And it must have its own character, which does not mean, however, the artistic-substantive or creative value. The latter is determined by matters other than laws and regulations in fashion, fitting within a culture as a larger social complex or value judgments issued by art critics and scientific observers.
The concept of successors in title refers to the spirit of inheritance law, which states that children are entitled to the fruit of their parents’ work. After the death of the author, the copyright does not automatically expire, but lasts 70 years after the author’s passing. Until 1993, this had been 50 years in the Netherlands, by European case law (including the so-called Phil-Collins-Ruling, 1993 and the Ricordi-Ruling 2002) equated to 70 years. This is directly related to the higher life expectancy of the heirs, based on the average life span of a person. In 1912, 50 years was a reasonable period, now it is 70 years. However, this copyright can also be transferred to a third party through contract. This only concerns reproduction, the exploitation right. The moral; rights arising from the right to make public, are inalienable and always remain with the maker or his successor in title in the event of passing away of the creator.
The indicated dichotomy, to publish and reproduce, is important since these are both equally the exclusive right of the author. Publication, in a musical context, refers to the giving of concert and music theater performances. Time and time again, the composer’s permission is required, this is the moral right of the maker. This is of course a hopeless task in current concert practice and therefore the composer – no obligation – can join a copyright organiation such as Buma. In the UK it is PRS, Gema in Germany and every country that has signed the Berne Convention has an official copyright organisation. Because the music world is international in character, all these organisations work closely together in order to also be able to pay the cross-border concerts properly to the right holders. The Buma association collects the funds that are released by giving or organising paid concert performances and distributes it to the affiliated authors. For music theater, unlike in countries such as France and Belgium, Buma has no mandate to collect these rights and distribute them to the authors through the distribution system. This has been a political decision, the Dutch government has deliberately refused to follow the French system in which the collection of the full copyright, both for concerts (minor rights) and opera, ballet, musical (major rights) and even here and there more Anglo-American oriented angle found.
The Stemra Foundation, mentioned in one breath with Buma, is there to ensure that the mechanical reproduction and publication of music, through recordings of all kinds, runs smoothly. The Buma / Stemra company is in fact the umbrella of both organisations that are so close to each other. This resorts under the direct responsibility of the Minister of Justice, so there is always a commissioner on behalf of the Minister in the management of the umbrella organisation.
Reproduction – the right of exploitation – refers to making an edition of the score produced by a composer, trading it commercially, making recordings of the written music and selling it. This usually involves a publisher of sheet music or – in the case of recordings sent directly to CD, LP, tape or streaming – a CD company. In the latter case, this can cause complications. Record companies have shown in the past that they are not always interested in the ups and downs of their artist, but more in their own bank account. Letting a cd company also be the publisher is usually not so sensible, although a starting artist, a starting band cannot escape that.
What is further meant with creators or makers, what the circumstances are for publishing and reproduction their works, all do’s and don’ts are clearly explained in the further articles of the law.
We get to work, quite a hassle
A good example of how it practically works can be seen with pop singer Sting. As soon as he left The Police to work on a solo career, he immediately founded a small publisher for his first production: Blue Turtle Music. Here he placed the rights to his first and immediately successful album “Dream of the Blue Turtles”. As soon as a name has been established in popular music, as well as in jazz, the rights of the music are handed over to a handful of small, sometimes temporary, publishers so that the revenues from playing the CD on radio stations, or via streaming, directly reach the maker , also end up with the composer and not just with the recording company.
This differs from classical music. A composer is commissioned, for example, by a concert hall, an orchestra or a string quartet to write a composition. He agrees, but only the entire score, the entire composition, will be the assignment after all. However, such a score, once finished, cannot be performed just like that. This requires that separate parts are distilled for the individual musicians. That is the first step in reproduction, placing the score with a publisher who ensures that the intended musicians can premiere the work. A contract is concluded for this purpose, usually for a period of five years. In the past, such a contract had a lifelong validity, but this was considered unreasonable for both composer and publisher. To this end, the Authors Contract Law was put into effect in 2015.
Subsequently, the publisher – in close consultation with the composer – can decide to make this work available to others apart from the commissioner. This can be done by printing the music in numbers and selling it via retailers or directly via the internet. In that case a distributive code is agreed for the profit from royalties (the rights collected based on public performances) and the profits out of sales. Due to the fact that this income is falling further and further behind as a result of illegal photocopying, scanning and distribution of lots of sheet music via the Internet, for works with a larger line-up than, for example, a string quartet, a system of rental of the music is chosen. This was basically invented by Verdi and his publisher Giulio Ricordi. In this way, the exploitation of the music can be monitored.
Now it is common practice, especially in the pop sector, to re-use all possible sorts of music, for example through samples or making arrangements for a different orchestration than in the original – a practice in the classical world. The internet is overflowing with this, so it is possible and it is allowed. Right? No says Aw 1912, Art.1, that is not allowed. This requires permission from the maker, the composer. After all, he has the exclusive right. But Igor Strawinsky (1882-1971) died long ago, right? No, sorry, the duration of the copyright is 70 years after the death of the composer. But I still want to make an arrangement, who should I ask, perhaps Buma, Gema, PRS? No, because Buma deals with publicly performing but is not an assignee in copyrights. This must either be done directly with the composer or his successor in title. In practice, however, this is the responsibility of the publisher, who is responsible for handling and assessing the questions in this regard. Authorization to create and perform an arrangement of a protected work can be requested, usually only for the duration of the series of concerts, or possibly for a recording with a predetermined edition. Usually a lot is possible, but in some cases not. For example, making an arrangement of Strawinsky’s Le Sacre du Printemps is not allowed. Never. End of story. The heir Strawinsky is clear in this. The Dutch composer Theo Verbey was by exception allowed to complete the 1919 draft version of Les Noces.
It doesn’t get any easier if we go through all the duplications of music: a score is printed and sold in circulation, the accompanying orchestral material printed and rented out. This creates obligations for the organiser of the concert.
Then there is a recording, first a CD, then it is played on radio. This broadcast appears on the internet via YouTube, but the CD can now also be streamed via Spotify. How many copies of the original – the score – are we talking about? This stacking creates a lot of confusion and loss of view on the original.
In the popular sector it is little different, but there is another obscuring phenomenon at play. The identification of music runs exclusively through the singer. But in the vast majority of cases he is not the author of the music. Singer/songwriters still do, but they often write for others as well. Take Burt Bacharach, Bruce Springsteen, Prince, John Hiatt and countless others – they wrote songs that were turned into hits, sung by others and sometimes by one another. The whole idea that pop musicians only perform their own music and are therefore more original than classical musicians is a myth. But the author of a Billboard Hot-100 hit is rarely, if ever, the singer, although rtv personalities, DJs and VJs continuously suggest this. This can lead to hilarious quests. Once a choreographer wanted to dance to Take Five and searched long for a contact person for Dave Brubeck. It took a while before it became clear that it was not Brubeck that was the author, but Paul Desmond. Dutch singer Trijntje Oosterhuis recorded Burt Bacharach songs, this was clear enough; however, Alfie was not written by Cilla Black but also by Bacharach. Merci, Merci, Merci not written by Cannonball Adderley but by Joe Zawinul, Fame not by David Bowie but John Lennon and so on. Hit quotations usually obscure authorship more than they reveal it.
Anyone who wants to perform an opera or ballet in the theater has other things to worry about. When working with an orchestra in the pit, sheet music will be needed. Whether it is existing music or newly composed, apart from the use of the actual sheet music, copyright is payable. But Buma plays no role in this. This is called grand (music theater) rights instead of small (concert) rights. Buma is not allowed to perform unless no copyright owner can be traced. And this is hardly ever the case. In this case there will be co-author, a choreographer or a librettist with whom separate agreements have been made by the publisher. Because Buma does not play a role in the handling of grand rights, in the Dutch situation the grand rights must be handled individually, per work, per production. That is why, under Dutch legislation, a performance contract must also be concluded with the copyright holders, usually via the publisher. Herein, the use of the work is regulated and agreements are made about further costs such as music hire fees and the percentage of grand rights that will be calculated. The percentages of grand rights are therefore higher for both ballet and opera (12% to sometimes 14% of the gross income against Buma small rights around 6% to 7%). This has to do with co-authorship: an opera is written by a composer, and a librettist is also involved. Usually they would agree to split on a 50/50 basis, but other agreements are regularly made. Usually the focus is on the composer). In a ballet work this can be a choreographer, but the addition of other elements such as props or multi-media can also be a reason why a small rights work turns into a grand rights situation. Actually as taught at school: there should be a unity of time, place and action. Even though the importance of this has faded to the background, added up to the original intention of the work, this is still a good measure for determining when you can speak of grand rights.
In general, a conclusion
Author’s rights, the copyright laws are not there to bully users of music, lyrics and other cultural works. It is there to protect the makers against infringement of the work made and the economic right that the maker has to his work. He must be able to live off it as a professional, that is not only his right, that is his fundamental right. The fact that it is a complicated matter for both the makers and the users of music, art and related products is one thing, it is also a complicated matter in politics. And in case politician is misinformed, things immediately go wrong, as the then party leader of GroenLinks, Femke Halsema and member of parliament and party member Mariko Peters found out after a publication in the Volkskrant in 2010. Inquiries showed that none of the members of this party had any idea of legislation and international conventions. After some vague political circling, no one heard about this anymore.
There is a tendency now to take the makers, especially those in the music world, a lot more seriously. The constant emphasis on the economic value of art generates increasing publicity; the nominal value has now been demonstrated. But this is only half the purpose of copyright law, also intrinsic value, moral rights matter. Too often people think they would need at least a higher education and a lot of prior knowledge in order to understand this value. It is not obvious enough in this neo-liberal era that this is all about respect. That respect should be enforced, as angry culture organisations in the province of Noord-Brabant showed after the newly formed provincial council in May 2020 had decided to abandon culture and replace it with leisure time.
In any case, copyright is still a source of much misunderstanding and is mainly understood by specialists in this field. That’s a shame because everyone who is involved with music in one way or another comes into contact with it. That is why it is important to understand at least a number of basic concepts. The fine details will come later, when really needed.
© May 2020, Willem Jan Keizer
nothing may be re-published or used otherwise without prior consent
For further reading
www.bumastemra.nl
www.ivir.nl
Copyright Act 1912 (English translation):
https://www.ivir.nl/syscontent/pdfs/119.pdf
https://www.iprhelpdesk.eu/sites/default/files/newsdocuments/Fact-Sheet-copyright_essentials.pdf
https://europa.eu/youreurope/business/running-business/intellectual-property/copyright/index_en.htm
PRS (Performing Rights Society) on Grand Rights:
https://www.prsformusic.com/royalties/theatre-royalties-and-grand-rights
http://www.iprhelpdesk.eu/news/copyright-protection-music-recordings-extended-50-70-years
https://www.wipo.int/edocs/pubdocs/en/wipo_pub_emat_2014_2.pdf
https://www.wipo.int/edocs/pubdocs/en/wipo_pub_emat_2014_6.pdf
Gabriele Dotto (ed.) – That’s Opera; 200 years of Italian Music
[© Prestel Verlag / Ricordi & Co. SpA, Milan 2008; ISBN 978-3-7913-6204-5]