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Copyright, Intellectual Property and Mozart

Copyright has a reason for being. In principle, no one should be against copyright. It is a matter for social justice to some extent within capitalist relations of production.

Copyright was born when the printing press began to exist. It was a very important step with respect to diffusion of ideas and works which was completely unprecedented in history. Copyright in some cases was a kind of censorship, but it eventually became the means by which an author was paid for commercial use of his or her work. In that way, stationaries and companies which published those works gave the author the respective share for the profit.

Today\'s big corporations which own practically the vast majority of the media today, have actually convinced the public that Copyright is actually \"intellectual property\", and that one \"owns\" an expression thanks to Copyright the same way one owns a house or a car. People, usually lawyers, get shocked when it is argued that this view is completely false. People suppose that the phrase \"intellectual property\" began with copyright and/or patents. In reality it was not until the half of the XXth century that copyright began to be treated in such a way. The phrase \"intellectual property\" was invented in the United Nations\' World Intellectual property Organization in 1967. Originally Copyright and Patents were completely dissociated, and had their own history and their own areas of law.

In the case of Copyright, it was originally created to do justice to the author and a bit more: to provide an incentive for the arts and sciences. This latter motive was the sole reason society had Copyright: only as a benefit for the public. Copyright strikes a balance between the author, the publishers and the public. Such was the disposition of the Statute of Anne in Great Britain, and such was the disposition of the U. S. Constitution. When it was created, Copyright was not conceived as a \"property\" but as a temporary monopoly on expressions in order to promote progress. What does this mean? It means that if you wrote a book, and submitted the appropriate documents to the Library of Congress (today you don\'t have to), you had a copyright on that book. You had a monopoly on that specific form of expression. If a stationary wanted to publish your work commercially, they had to pay you, they couldn\'t stay with all of the profits. So Copyright was an industrial regulation for the sake of authors and the public.

There are many things that makes Copyright completely different from any kind of ownership:

1. Copyright covers expressions, which are not a physical objects. The \"physics\" of expressions are different from the physics of physical objects. When I give you a glass of water, then that means that I no longer have it, and you have it. But as a writer, if I write a book expressing myself in a specific way, many readers will grasp it, but I never lose the expression itself, since I grasp it also. So, expressions themselves cannot be owned. It is only under an extreme capitalist way of thinking, which conceives everything as property, that makes people believe that actually they can own expressions as they can own land, houses, cars, or companies.

2. Copyright is a monopoly that is not an absolute monopoly. Originally copyright was intended to only cover commercial use of expressions. However, there are instances where copyright clearly didn\'t cover. These instances fell under the concept of \"fair use\". Can there be \"fair use\" of my car? Can there be \"fair use\" of your house? Can there be \"fair use\" of Mary\'s computer? Of course this all sounds silly. If I go to your house, and use your car without your permission, and I say that I use your car under \"fair use\" because I won\'t use it commercially, you should feel outraged. It\'s your car, not mine! There can be no \"fair use\" of your car in any way. Copyright in this aspect is radically different. The copyright-holder has no power over people who use a specific copyrighted expression under \"fair use\".

3. Copyright is only temporary. Yes, you can treat it as a kind of \"property\" in the sense that you can dispose of it the way you want. You can sell your copyright, you can give it away, you can place it under public domain, etc. But the monopoly is only temporary. Why? Because in the end a copyrighted expression should be free (in the sense of freedom) within a democratic stat. It fascilitates the exchange of ideas, and cultural development in many ways.

So, copyright is not property. Don\'t fall into the big corporations\' discourse that without copyright, works are doomed to inexistence, and companies cannot make profit out of them. There is no Copyright on Shakespeare\'s works and on Cervantes\' Don Quijote de la Mancha, and many companies make profit out of those works. I rest my case!!!

However, this \"copyright is intellectual property\" stuff leads often to the assumption that copyright is the only way to make culture be richer, that culture can only be developped by \"owning\" expressions. This is not the case. When copyright began existing, it only covered a commercial use of one sole expression. Today copyright covers, not only commercial use for expressions, but also non-commercial use of expressions, and even non-commercial copies or derivative works. This is done supposedly for the sake of culture. Does this work?

Recently I was watching the movie Amadeus, and I watched the scene where Mozart shows the king that he knows Salieri\'s march dedicated to him. He took Salieri\'s march, and from that he made a completely (needless to say absolutely wonderful) derivative work: the melody Mozart would use for Le Nozze di Figaro. Of course, this specific case is not historical. However, Mozart did indeed make lots of derivative works. When I was a kid, I remember that my mom gave me a record on the composers, and when it referred to Mozart, the narrator showed several different (needless to say absolutely wonderful) ways that Mozart played the melody \"Twinkle, Twinkle Little Star\". I was completely amazed. But his derivative works were not limited only to melodies. It included literary works. Mozart used many literary works as basis for his operas. Don Giovanni is an example of this, as well as Le Nozze di Figaro, among many others. No one who has heard Mozart can say that he was not original, and no one can say he didn\'t make an awesome job.

What would have happened if Mozart lived today under current Copyright law? Simply, he would have been screwed big time!

If Mozart would have lived in the U.S. by 1790, his situation would have been quite good, because by then, the U.S. copyright law only covered commercial use of only one expression. It didn\'t cover commercial and non-commercial derivative works. It would have been possible for Mozart to enjoy composing. Today, he would have had a pain in the .... neck. You see, today Mozart would have to be careful if a company wanted him to pay lots of money to license certain uses of a copyrighted material, specially if performed in public, even if it is for non-commercial purposes. I mean, if the Girl Scouts can\'t perform \"Happy Birthday\" without paying (still a copyrighted material), Mozart would be in serious trouble! I mean, imagine the RIAA sending one of those monitors who have sued restaurants, retailers, hotels, and clubs to one of Mozart\'s operas. By Mozart\'s time \"Twinkle, Twinkle Little Star\" had no copyright (it was in the public domain), today, a copyrighted material can last even up to 150 years. Imagine if Mozart wanted to make an excellent derivative work of \"Happy Birthday\", he would have died of old age before he could make a derivative work out of it.

Of course, I imagine someone saying: \"Well, today he would have been contracted by a company, and he would have written his excellent works, because the big labels can negotiate copyright licenses with each other.\" Well, then that means that Mozart would be perhaps one of the 90% of artists (even talented artists) who have worked for RIAA labels and would have made more money working in a 7-11. Look at American Idol, there were many winners in their contest (and very tallented winners I might add). Where are they now? Oh yes!!! I remember, William Hung is making millions out of his \"talent\"! Maybe Mozart would have ended up like the other 10% who have had profit, or even millionaires. But unfortunately \"his\" works would not have been his. The label would have complete dominion over his works, and would perhaps sell it to the highest bidder. The record label would try its best to screw him, with perhaps 150 years without his work being in the public domain, preventing others to use his works to make MORE derivative works, and enrich those works with more musical ideas and expressions.

So, a completely restrictive copyright, far from promoting culture, arts and science, really represents a serious hindrance to cultural and scientific progress. This is the reason that I not only fight against the RIAA for ethical reasons, but also promote what companies like Magnatune.com and organizations like Creative Commons are doing, which is to promote re-mixing music (commercially or non-commercially) in order for musicians to be creative and build upon other people\'s works. Recently I read from Magnatune.com an announcement for its participation in Creative Commons\' CC-Mixter, and there is a contest for people who can make derivative works from Lisa DeBenedictis\' music. Magnatune.com has offered to the winner the promotion of its music under three conditions: the author must retain his or her copyright, he or she should accept 50-50 profit distribution of that label, and that the music must be distributed under a Creative Commons license so others can also make a remix and share music.

Current copyright schemes made by big corporations won\'t allow this type of things because they want to maximize their profits by taking author\'s copyright away from them, and punish the public if they ever dare to make derivative works or share music. In order to REALLY promote culture, copyright must strike a balance to benefit authors and musicians and the public interests. Only then, people will have genuine freedom of expression.

Comments

Great article

Great article there Pedro..

It nicely reveals the core of the issue we have today about our culture. Balance has been lost and the forming free culture movement is trying to restore it. Who's the movement? Well, creative commons organization, FreeCulture.org students movement, many sites using CC and copyleft licensing, free software and open source movements. This is a whole axis of the opposition to the imbalanced "permission culture" that is being imposed on us, an axis for the free culture.

Thank you
Daniel

Re: Question?

 

When an author dies to whom do the copyright licenses pass. Are transfered to the heirs? Or does the publishers get it. I think copyrights on books, movies, and music recordings should only last 20 years after publication, or until the authors death. In twenty years most things go out of date anyway. However, if a book happens to become a classic then the author will become famous and the proliferation of his due to a smaller copyright span will only increase his fame. :smurf:

Re: Question?

 

The copyright licenses pass to the heirs. Remember that at least in the U.S., Copyright Law states that it lasts the author's lifetime plus 50 years (I heard that it was extended to 70. I agree with you with respect to a 20 year copyright span. At the very beginning, with the Anne Statute of Great Britain and the first copyright law in the U.S., copyright lasted for 14 years, and renewable for another 14 years (for a total of 28 years). Then it goes to the public domain. That's why I support Tim O'Reilly's and Creative Commons' idea of the Founder's Copyright, which consists of exactly the same disposition.

 

I agree with The_Prisoner, in 20 years or even less, things will be out of date, we are living in the very fast changing world, so it's about being an all time masterpiece or just another general, so-so achievement.

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