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[ox-en] Folk music and copyright



there is an interesting link describing the relationship between folk
music and copyright. The document reflects the hacker attitude to the
respectivce field of engagement very well. In this it explains that
copyright is unimportant for this music branch - but not only this.

I'll quote some of the most interesting paragraphs here.

  The Management of Copyright and Related Rights

* *

Consultation response from Professor Ross Anderson
<>, Cambridge University, and Foundation
for Information Policy Research <>

1.     This note is in response to European Commission consultation
document COM(2004) 261 (final)
on the management of copyright and related rights in the internal market.

2.     I welcome the Commission's initiative , and wish to bring to its
attention a number of issues that arise from the viewpoint of folk
music. The Commission will have heard representations from the music
industry, whose business model involves a small number of star
performers and a large number of passive consumers. Folk music is very
different. Many listeners also play, and innovation (whose promotion is
the reason for copyright to exist) is often incremental. Performances
often take place in pubs, church halls, and outdoor festivals rather
than in large, well-regulated venues.
5.     Despite the importance of folk music to the life of the
Community, there appears to be no body representing our interests in
Brussels. There are many associations devoted to the furtherance of
particular instruments or musical traditions, but not one of these
appears to be seized yet of the problems that could be caused by an
ill-informed harmonisation of the rules for collecting societies.
7.     I have consulted a number of people in the folk music world prior
to writing this document. The views expressed here are my own, but I
believe they broadly represent what the community's view would be, were
there mechanisms to arrive at a consensus view. Although I illustrate my
points principally with respect to Scots piping, my remarks apply also
to Northumbrian, Irish, Breton, Flemish and Galician piping, to Shetland
fiddlers, to French luthiers, to German players of the Drehleier and the
many other folk traditions in the EU. They also apply more generally to
many people who play music for pleasure rather than being commercial
performers or passive consumers.

8.     Thirty years ago, folk music fell largely outside the scope of
copyright enforcement. If a musician published a book of tunes, or cut a
record, standard commercial rules were applied by the publisher.
However, live performances were unregulated. In theory, if I as a street
musician played someone else's tune, they could have sued me for a
royalty, but this was just `not done'. Indeed my teacher, Donald
MacLeod, was also a prolific composer and was aware that I spent my
summer vacation `on missionary duty on the Continent', as he put it. Not
only did he not ask for royalties - he was fully supportive and even
posted me new reeds on occasion when I needed them. During his lifetime
he published seven books of tunes, not in order to get rich from
collecting-society royalties, but so that people would play his music.
11.  In short, folk music is primarily a community-based activity rather
than a commercial activity. It is driven by love of music, shared
cultural interests, the pleasure of participation, the social aspects,
and (at the top end) by competition for prizes and honours. It lies at
the other end of the spectrum from commercial pop music, whose vendors
have been doing much of the lobbying for recent changes in community law.

12.  Now, however, the incessant tightening of copyright law is starting
to have unpleasant effects on folk music, which are starting to cause
serious disquiet.
16.  The effect is that school bands will be much less likely to play
any recently composed music. This is totally perverse given the preamble
to the EU Copyright Directive:

  (14) This Directive should seek to promote learning and culture by
  protecting works and other subject-matter while permitting exceptions or
  limitations in the public interest for the purpose of education and

17.  The reaction of music composers is as one might expect. Neil
Dickie, one of the prominent composers of my own generation (and a
former piper in my school band) has written that provided a band or
school owns one copy of his book, that's enough; they are welcome to
photocopy tunes for practice. Other composers take an even more liberal
view. Some place their music completely in the public domain; others
(like Matt Seattle) put their compositions on their websites as well as
in published books, so that sheet music becomes free for non-commercial
performances, but retain the right to collect royalties from commercial
performances through the PRS and from commercial recordings through the

18.  Now consider what might happen with the harmonisation of collecting
societies in Europe. If the Commission, the Parliament and the Council
agree to follow past practice of harmonising all copyright-related
matters upwards, then we may expect European collecting societies to
follow the German model. I understand that there, a copyright owner must
pass all rights to the collecting society. A composer who grants a
licence for the limited, not-for-profit reproduction of sheet music (as
Neil Dickie has done) cannot participate in their system.

19.  Thus the effect of imposing German practice throughout Europe would
be to deprive some folk music composers of royalty streams to which they
are entitled and which they currently receive. That is clearly unjust
and likely to be open to legal challenge. (In fact, even at present the
German practice probably contravenes article 82; it deprives some
composers of income from pipe bands playing in Germany.)

20.  Such an outcome would face composers with a binary choice: either
become fully commercial (and quite probably have no-one else play your
tunes until 70 years after your death) or place your music fully in the
public domain (and get no license fees at all). Such a choice would
create outrage, and if nonetheless enforced might have long-term
consequences very far from what many stakeholders want. Folk music might
be changed into something so similar to commercial music that it was no
longer `folk'; on the other hand, such a rule might spur the emergence
of public-domain music on a scale that would damage the major record

21.  I therefore welcome the Commission's observation (3.5.3) that users
should be able to manage some of their rights individually. The exact
definition of `rights' here is slightly tricky, and I will return to it
below (sections 26-29).
25.  So what is required? A useful analogy may come from software, which
is sometimes created completely by a commercial vendor, but is sometimes
the result of incremental contributions by many individuals. In the
latter case, there are many licensing arrangements available, such as
the GPL, BSD and the Apache licenses.

26.  This experience has helped inspire the launch of the Creative
Commons, which offers licenses for musicians (and others) that support
cooperative work. Creative Commons licenses enable musicians to grant
some rights to the public while retaining others. For example, a
composer can release music that anyone may perform for non-commercial
purposes. He may also release a composition with permission for anyone
to create derivative works.

27.  There is a real demand for this diversity. For example, in the
Northumbrian piping tradition, it is normal for players to compose their
own variations on tunes. Among Scots pipers, Neil Dickie takes the view
that his tunes should be played exactly as he wrote them. Yet again, the
rise of appropriation artists who rip and remix others' work is such an
exciting development that no less a composer than David Bowie has given
permission to people to create derivative works from his songs. Given
this diversity of preferences among composers, to maximise cultural
innovation we must support a diversity of licensing regimes.
30.  The Commission should therefore note that this area of law is still
in its early stages of development and should not legislate to harmonise
collecting societies in such a way as to cramp or stifle that
development. It should not see harmonisation as an opportunity to get
everyone up to German standards. Rather, it should be an opportunity to
get Germany up to the more liberal and open standards elsewhere.

31.  There is another aspect of collecting-society law and practice that
merits consideration, namely enforcement. While I was busking with my
bagpipes in Munich 30 years ago, it may have been possible in theory for
Donald MacLeod (and the other living composers of tunes I played) to sue
me for a few pfennigs in royalties. In practice I was safe, as that was
simply not how people in the piping community behave. But now collecting
societies are taking over enforcement functions, a practice that will be
accelerated by the EU IPR Enforcement Directive, and social norms may no
longer be relied on.
38.  There is a final issue I wish to raise, which is music online. The
enormous potential of the world-wide web has not been harnessed by
musicians anything like as much as it has been by scientists (my day job
is as a computer scientist). The main obstacle is the rules enforced by
the collection societies. A typical rule is that I may record a Paul
McCartney tune on a CD I cut, provided I pay him 3c per track per CD
sold. This was a welcome innovation at the time, as it prevented
Paganini-like behaviour. However, the fact that the fee is a flat rate
(rather than a percentage) is now a serious problem. It inhibits people
from placing performances on their websites. There have been a few
private sites that hosted recordings of pipe band competitions, but this
has never taken off. The problem is that, as enforcement passes from the
composers to the collecting societies, such sites will eventually be
declared to be `pirate' and shut down - even though the recordings
perform a valuable social service and are posted with the consent of
both the performers and the composers. This is an extremely perverse
44.  Although not by nature in favour of multiplying legislation, I tend
to be driven reluctantly towards the Commission's view (3.6) that
Ôabstaining from any legislative action does not seem to be an option
anymoreÕ. However, good legislation needs to take into account the
interests of all affected parties, and I am concerned that, so far, the
debate has been driven by the music majors, the collecting societies,
the DRM vendors, and those NGOs and government departments whose remit
covers consumer interests. This is not enough. Throughout the European
Union there are millions of people who play music for pleasure, or for
sub-commercial reward, and millions more who enjoy community music
traditions. Folk music in particular plays a key role in creativity and
culture throughout Europe, and our interests have been sorely neglected
(and even harmed) by recent developments in copyright law.
Professor Ross Anderson

						Mit Freien Grüßen


Organization: projekt

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