THE BUSINESS OF MUSIC

Reflections of a Music Publisher

by ERNST ROTH

 

2. INTELLECTUAL PROPERTY

The most diverse things technical progress, the spread of education, mass communication and certainly some real enthusiasm-had to combine to create a monstrosity: music has become the mass-produced product of a vast industry. It has developed into a gigantic international enterprise employing hundreds of thousands of people-artists, technicians, lawyers, tradesmen, obsessed enthusiasts and cool speculators, a highly colourful world wherein the most sublime ideals rub shoulders with the most down-to-earth objectives, the amour des lettres with the esprit des affaires.

This world, like any other, needs discipline and order. At its periphery the traffic in music is subject to the ordinary rules of traffic. Debts must be paid, cheques must be honoured, offers must be binding. But the merchandise is of such a special and unusual nature that only exceptional laws can govern it: the laws of copyright, the right of intellectual property.

And here, immediately, the divine and the human, the high and the low, collide. Copyright is a cold-blooded attempt at reconciling mind with money. A cynic might even suggest that the whole idea of copyright was to care for the proprietor rather than for the property.

Copyright as we know it today is a venerable institution. But it must not be forgotten that for thousands of years mankind wrote poetry, painted pictures, built temples and composed music without any protection whatsoever, and that its absence obviously did not hamper the creative powers of artists; nor has its presence apparently enhanced them. The arts are very old, but copyright is very young.

Unlike jurisprudence generally, the law of copyright has not grown with and out of particular conditions. The Ancient Greeks, who were exceptionally capable artistically but rather simpleminded in legal matters, never thought of it. Even the Romans, less gifted creators but eminent lawyers and administrators, never tried to find a formula for the protection of the artist. There must have been no need for it. After all, Roman art prospered to no small extent on the imitation and reproduction of great examples, and this may not have allowed the idea of the exclusiveness and inviolability of intellectual creation to be developed. It was, on the contrary, the natural function of a good sculpture to be copied, of a good thought to be re-thought. Nor, apparently, did the living-conditions of creative artists justify any intervention by the legislators. Sculptors, painters, architects and cutters of gems and medallions were certainly paid in accordance with their capabilities and with the importance of their task. From a legal point of view this was no different from any other contract of senice, purchase or sale, unaffected by any consideration of the intangible or the divine. How most poets and philosophers made their living we do not know, though some, like Aristotle, had wealthy and munificent pupils and others, like Horace, had liberal patrons. Nothing suits the arts better than liberal patronage, which rewards generosity of the mind with generosity of money. It ensures the dignity of both, and the Roman system must have produced an enviable balance between the artist and society: the artists 'gave' their works to the world and the world proved grateful without any sense of obligation. We still speak of a work of art's being 'given' to the world, although the phrase is no longer accurate. Great works have been created and given to mankind under this rule of generosity, and no complaint about the conflicting needs of mind or money reaches our ears from those distant, happy days.

It was more than a thousand years after Virgil that the first murmurs of discontent were heard-characteristically, from poets. Whereas sculptors, architects and painters still enjoyed the advantage of supplying material objects at a price which fully covered both their intangible and their tangible work, poets, such as the most famous of German minstrels, Walther von der Vogelweide, could and did complain of the discrepancy between the richness of their art and the poverty of their reward.

It was the advent of printing which decisively disturbed the peace and brought to the surface the problems which had been gathering in the subsoil of artistic creation. Printing allowed a degree of exploitation far beyond the former business of scribes and copyists. The printer was now also the distributor of the printed work, the publisher, a businessman who invested money in presses, founts and paper-and who demanded protection from his competitors. This was-the real issue. Emperors, kings and sovereign princes sold privileges to printers. Con licenza dei superiori; Cum gratia et privilegio Christianissimi Francorum Regis; By privilege of His Roman Imperial Majesty not to be reprinted within ten years such are the notices printed on the title-pages of early books, warning against infringement of the monopoly given to the printerpublisher (though not, it must be emphasized, to the author).

Anglo-Saxon thinking has still not really advanced beyond this point. The technical term for the author's right, the droit d'auteur, the Urheberrecht, is still 'copyright', the right in the copy and not in its intangible contents which resist legal definition. Copyright today is no more than a misnomer, although with one ominous exception: neither the British nor the American Copyright Act acknowledges the droit moral, the inalienable, non-transferable right of the author or composer to prevent and to prosecute anything which he considers to be a disfigurement of his work, such as cuts, changes in instrumentation or even an objectively bad performance.

Privileges are not rights but exemptions from rights. They were not granted as a matter of course but had to be applied for and paid for. By granting them the sovereign secured for himself a share in the revenue from the intellectual creations of his subjects, to which he was as legitimately entitled as to treasure trove. The creators themselves acquired no title and were fully exposed to the predatory practices of the printers - and Martin Luther was not the only author who complained ineffectively about the way they exploited the works of others. Also, the privilege had no validity outside the country where it was granted, which was particularly serious for musicians. (Peter Paul Rubens was probably the first 'author' to enjoy international protection of his works when, in 1619 and 1620) the Dutch States General and the Kings of England, France and Spain granted him the exclusive right to execute and distribute etchings of his own paintings. This, no doubt, required an artistdiplomat with good connections, and for a long time it remained a rare exception.)

However, the growing discontent of authors led in the end to a kind of conspiracy. In 1776 Beaumarchais (whose sarcastic comment stands at the beginning of this section) founded, together with some like-minded friends, the Société des auteurs et compositeurs dramatiques, a society of dramatists and opera-composers who were determined thenceforth to make the most of their talents. Only those theatre-directors or impresarios who paid a royalty to them and to nobody else should be entitled to have access to their works. This was intended to protect them from the greed of the entrepreneurs as much as from the weakness of their own characters, for corruption and intrigue were rife, while goodwill and co-operation had to be bought with substantial bribes payable to everyone from the managers down to the porters at the stage doors. What a pity that Beaumarchais himself was such a scoundrel! It would be more pleasant to think of Apollo coming down from Parnassus to take arts and artists under his protection. But the prize must go to the inventor of the clever, eloquent and rapacious Figaro, and it is his name which shines in resplendent golden letters outside the premises of the still flourishing society in the rue Ballu in Paris.

Since then Frenchmen have never ceased to speculate about the peculiar position of art and artists in a world which felt the coming upheaval in its bones. The revived determination to recognize beauty and do good led to the conviction that an orderly world would have to do justice both to the god in man and to the man in god. Jurists had their qualms. Neither Gaius's Institutions nor Justinian's Pandektae, which between them still formed the basis of legal thought in France, gave a clue as to how the abstract product of the mind could be made into a protectable object-its concrete representation, paper and ink, canvas and colour, marble and mortar, being irrelevant. Then the American Congress, and subsequently the French Revolution, proclaimed the doctrine of 'Human Rights', equally unknown to the classical authors and equally abstract. This pointed the way, and on 19 July 1793 the propriete intellectuelle was formally enthroned. This may be called the birth of copyright.

The basic doctrine was new: the author is by nature rather than by law or grace the exclusive owner of his work. In one respect only did the jurists not give way: to this day mere ideas, improvisations, cannot be protected. There must be an incontestable record, a 'work', a manuscript, a picture, a building. Beyond this, however, no formalities need be complied with, no applications made, no fees paid to secure protection. Both entrepreneurs and public are alike forbidden to take possession of the work. Only with the author's consent can they make use of it.

This must have created some serious problems, especially in music. The exclusive right of the composer operates not only against the exploiters and the public but also against his fellow musicians. And it was in music that respect for other people's property was most lax. Borrowings were frequent, forgeries not rare. More works were published under the name of Pergolesi than he could have written in a long life-and he died at twenty-six. Haydn's name figures on several dozen works of which he knew nothing. When Mozart became fashionable at the beginning of the nineteenth century his name was not spared either. Such a casual attitude is difficult to understand today. J. S. Bach did not bother to indicate the source of any of his transcriptions of works by Vivaldi, Marcello, Telemann and others, although in his case there was no intention to mislead anyone. It was simply a matter of no importance. Opera-composers showed a similar attitude to the authors of their libretti. 'A certain individual called Mozart in Vienna has had the effrontery to misuse my play Belmont and Constanza for an opera libretto,' exclaimed the outraged author in a Leipzig newspaper after a performance of Die Entfuhrung aus dem Serail. It was quite true. He had not been asked for permission, he had not been invited to co-operate, he was paid nothing, his anger was perfectly justified-but he had no redress.

Under the rule of copyright such things should not happen again. The State places all its judicial and punitive resources at the artist's disposal, and every infringement becomes a punishable offence. The new conception establishes both the material interests and the respect for the creation of the intellect, in the same way as material property is protected by the law. The borrowings of yesterday become thefts; forgery becomes scandalous. Nothing in art is more contemptible than plagiarism.

Let us remark here that plagiarism is more difficult to prove in music than in literature. 'Style' in music is no more than an accumulation of phrases and turns which are common to most composers of the time-in the case of Mozart, Hermann Abert has shown this in great detail and with remarkable diligence. Thus only the most blatant examples can be prosecuted successfully. In my career I remember only one such case, when a song was reissued with a different text and title. The original was long forgotten and the new, unauthorized version became a great popular success. So all concerned, the defenders and the offenders, agreed to let the desecrated original (whose composer was dead) be forgotten and to share as honestly as the peculiar circumstances permitted the considerable revenue from the more successful version.

he newly discovered and formulated 'author's right' did not by any means capture the imagination of the world at one stroke. Although its revolutionary character soon lost its menace and the idea became more acceptable outside France it was more than fifty years before a codified copyright spread to the greater part of the civilized world. Once it had reached that stage, however, there was no holding it. The arts, unlike the men and women who produce and enjoy them, cannot be confined to one particular country. The new means of travel and communication brought once distant countries closer together, and with the growth of international trade in all types of goods it was felt necessary to supplement national copyright laws with international agreements. In 1886 the Berne Convention for the Protection of Literary and Artistic Works was signed, and most civilized countries adhered to it, with the notable exceptions of the United States of America and Russia. The Berne Convention is certainly one of the few effective instruments of international law. Others exist more in theory than in practice, and one would like to think that artistic matters have brought about a union of peoples and governments which purely material considerations and interests have never achieved.

In broad outline, the Berne Convention stipulates certain minimum requirements of protection to be included in the national legislation of each convention country, and demands that foreign works should enjoy the same protection as 'national' works, the nationality of a work being decided by the place of publication and not by the nationality of the author. Thus a Russian author obtains protection in all convention countries if his work is first published in one of these, irrespective of the fact that Russia has never ratified the convention. This has been of particular importance for music, and Russian publishers such as Belaieff, Jurgenson, Gutheil and Bessel opened their own publishing houses in Paris, Berlin and Leipzig in order to secure protection for the enormously successful new Russian music of Tchaikovsky, Borodin and Rimsky-Korsakov.

The United States, on the other hand, concluded bilateral treaties with the most important countries though not with Russia-by which reciprocal protection was granted, though the formality and fee of registration with the Library of Congress in Washington had still to be complied with. The fee has only fairly recently been waived. Protection depends on the nationality of the author and a Russian, for example, not domiciled in the United States cannot obtain it even if his work is published in a country which has a treaty with the States.

So, at the end of the nineteenth century, everything seemed well provided for. Artists could not ask for more. Jurisprudence had mastered the difficult problem.

As early as 1793 certain doubts had arisen. Material property is basically everlasting. A reward of land and title bestowed centuries ago by a king on a loyal follower can be perpetuated as long as the lineage flourishes, however unworthy the descendants may be. Only the owner's free will, insolvency or bankruptcy, or actual physical destruction, can change the ownership of material goods. Copyright, in appointing the artist the sole owner of his work, applied essentially the same rules. But, while it was accepted by all legislative bodies of the time that property in general should benefit its owner alone, there remained the awkward contradiction that works of art were destined for mankind and that mankind, too, was entitled to a benefit. Here was an obvious conflict. Many an established legal principle had been violated to produce the concept of intellectual property, but now the jurists had to go one step further. No sooner had the artist's rights been established than the legislators had to consider how dispossessed mankind could recover its cultural heritage. This has remained a dilemma ever since copyright was introduced. Nothing that has happened since 19 July 1793 has reconciled the opposing interests of artist and public. As recently as 1959 the first paragraph of the decree by which a Ministry of Culture was created in France (where the idea of the intellectual property originated) says solemnly: 'It is the task of the Ministry of Culture to make the major works of mankind in general and of France in particular accessible to the largest possible number of Frenchmen.' This almost sounds as if the new ministry had the power to override the exclusive rights of the artist if they restricted access to his work. To the layman-and, especially, to many people in the musical profession-this may seem reasonable enough, but no lawyer could accept such blatant disregard of rights which are nowhere defended with more determination than in the French courts. In fact, the Ministry of Culture has no such power.

It was clear from the outset that some means had to be devised to circumvent the difficulty, and that intellectual property could not simply be equated with material property by the award to the artist and all his successors of an everlasting, exclusive proprietary right. The theory is that it is neither the Government nor the people of any particular country which bestows copyright, but mankind itself-and that mankind therefore reserves for itself a reversionary right. The works are, ideally, everlasting; the rights in the works are not. The day must come when the creation of the intellect can be returned to the public. The original French terminology, still in use today, calls it characteristically 'la droite dans le domaine public', the 'lapse' into public property or the public domain. When this day arrives all the barred and bolted doors are flung open and mankind invades the sanctuary to take possession of its patrimony, to which it is entitled by virtue of its kinship with the original creative mind. All the limitations previously imposed by law become null and void, including the 'moral right'.

A work 'in the public domain' can be freely altered, arranged and rearranged, used or abused at will, for it is nobody's and everybody's property. Mozart's piano sonata in C (K. 545) becomes 'In an Eighteenth-Century Drawing-Room'; Mendelssohn's overture to A Midsummer Night's Dream has three trombones added to the orchestration, although Mendelssohn himself deliberately avoided them; Carmen becomes Carmen Jones; Romeo and Juliet becomes West Side Story. Unscrupulous arrangers and publishers must not be held responsible for such outrages. It is for the public to discourage them. Such misdeeds are committed simply for the sake of money, which only the public can provide. So it is for the public and public conscience to prevent them, for there is no authority to safeguard unprotected property against the vandalism of its owners. True, there are a few countries which have introduced a so-called 'domaine public payant'; Italy for all artistic works, France for literary works only. For such works a royalty must be paid for the reprinting or performing of unprotected works, but this represents only a form of taxation and not protection.

The 'period of copyright' is one serious anomaly in the artificial edifice of copyright legislation dealing with goods which lead a peculiar material and spiritual double life. Every period of copyright is arbitrary. The only natural moment for protection to cease would be on the death of the author, but mankind and the legislators could hardly be so callous. No other time-limit could be anything but arbitrary. In France, a period of fifty years post mortem auctoris was stipulated from the beginning. Most other European countries would not go beyond thirty years, which, in French eyes, prematurely surrendered the works of Wagner, Brahms, Johann Strauss and Dvorak, together with French works still protected in France such as those of Bizet, Gounod and Delibes. Germany did not introduce the fifty-year period until 1934, but in 1965 she extended it to seventy years. There was and is little uniformity: Spain has eighty years, Brazil sixty, Portugal an everlasting copyright. There is no reasonable justification for any of these limits, as there is, for example, in the close season for hunting or fishing. The period of copyright is a compromise between artist and public, hesitantly sanctioned by legislation.

Even the motives behind this 'period of copyright' are not clear. Since 1871 France has extended it by the war years 1870-1, 1914-18 and 1939-45, so that it stands at present at sixty-one years plus several months and days, the reason being that during those years the works could not be properly exploited. The principle, therefore, is unashamedly materialistic. Since the Second World War Italy and the Scandinavian countries have followed the French example.

On the other hand the United States has introduced an altogether different system, and it is anybody's guess whether this was prompted by spiritual or commercial considerations. The American law allows the artist a total of fifty-six years (two periods of twenty-eight years each) from the date of publication, which date is ascertainable by the entry in the Copyright Register at the Library of Congress in Washington. It therefore happens not infrequently that a work falls into the public domain not just soon after the artist's death but actually during his lifetime, which seems rather inconsiderate on the part of the legislators. Certainly it is a galling experience for the artist, more particularly for the European artist, who is used to more respectful treatment. True, up to the beginning of this century America owed more to the rest of the world than she had to offer, and the case for better copyright protection was not very strong. However, since America has become an important contributor to science, literature and serious music, as well as the greatest power in the realm of popular music, the copyright law is in the process of being revised and the fifty-year period after the death of the composer is to be introduced.

As the purpose of copyright is the protection of the artist from society it is of a certain piquancy to see how communist countries are dealing with it, the overriding communist doctrine demanding that the interests of the individual be subordinated to the interests of the community.

Those communist countries which were members of the Berne Convention before the war, such as Czechoslovakia, Hungary and Poland, have remained members and are fulfilling their international obligations as best they can. They have not materially altered their national legislation under communism except that they have accelerated the 'lapse into the public domain' by reducing the period of protection to twenty-five years from the death of the author, this applying equally to their own works and to foreign works in their territory.

Communist Russia, like Tsarist Russia before it, scorns all international conventions and still finds it more profitable to abandon all rights in Russian works abroad and gain free access to the artistic and scientific production of the rest of the world in exchange. Russia has, however, a national copyright law, first promulgated in 1928 and thoroughly revised in 1961. In the special circumstances of communism this law gives a more vivid picture of the conflict between art, artist and society than the laws of capitalist countries, which tend to obscure the deeper issues. Contrary to basic communist principle, which allows private ownership of minor assets only, the Russian copyright law stipulates the exclusive proprietary right of the author in his work, which is a capital asset-provided, however, that the work is in line with official ideology. Napoleon, in more primitive times, hated all ideology and ideologists; communism loves both and makes the arts its ideological vehicle. Arts and artists are privileged and, if necessary, punished, and the obedient exponents of official ideology enjoy concessions nobody else could expect from such a doctrinaire way of life.

Ideology is easily identifiable in literature and also to some extent in science. When it comes to music it becomes more hypothetical. There is no explicable reason why Tchaikovsky's music should conform better to communist ideology than Boulez's, unless it is simply that one has a wider appeal and is more accessible than the other. But the alleged modernity of communist society admits of no modernity in the arts. The experiments and efforts of 'decadent' and 'bourgeois' Western composers to create a new music are forbidden to their Russian counterparts. It is noteworthy that the abolition of such restrictive and ill-defined ideological rules in music have led to a true explosion of new talent in Poland.

If a work does not conform to the official, authoritatively imposed ideology it remains unprotected. The law simply states the fact, without disclosing who makes the decision or indicating any procedure or right of appeal. In a capitalist country this withholding of protection would mean only that the work would be free for all. In Russia it means suppression and prohibition, the State being the only authorized publisher and distributor. If the State Publishing House rejects a work there remain only illegal ways of bringing it to the notice of the public. A work like Dr Zhivago has to be smuggled out of the country and published abroad, and the smugglers and their helpers risk their freedom.

If, however, the work is in line with ideological requirements it is given protection, and the exclusive ownership thus conferred at once collides with the existing order. The author can destroy his work or bury it in his desk. There is nothing in the law which can compel him to part with it. (Communist legislation is not generally deterred by unenforceable laws, since if need be they can be supplemented by violence.) But if an artist wants his work to be exhibited, printed, performed or distributed, he has no alternative but to assign his rights to the State authority. He cannot cast around for the highest bidder or the most suitable publisher. The State decides the conditions on which the rights must be assigned and the law itself provides a guide as to the percentage of royalties due to the artist on the sale of books and music, a rule which contradicts all the experience and usage of a 'free economy': the greater the print, the smaller the royalty. Thus, while the period of protection may still be of material importance for the author, for the public it is irrelevant. In capitalist countries a work 'in the public domain' is normally cheaper than a protected work; in Russia there is no discernible difference between them, both being in the hands of the State as the sole owner and virtual infringer of copyright. Indeed, the law promulgated by the Central Government treats the period of protection with complete indifference. The Copyright Act of 1928 stipulated fifteen years after the death of the author; the new act indicates no definite period but leaves it to the member countries of the Soviet Union to decide within their own jurisdiction, which so far they do not seem to have done. It is open to debate whether this in effect means that every work or no work is 'free'.

It will largely depend on his good personal relations with the executives of the State Publishing House what influence a composer, say, has on the typographical appearance, distribution and publicity of his work. The law itself gives him no remedy for any failure on the part of the publisher. It regularly happens that even the most important works are restricted to a single edition, the demand being declared to have been satisfied when libraries, schools, orchestras and opera-houses, theatres and broadcasting organizations have been supplied with copies. Shostakovitch's 'Forty-eight Preludes and Fugues' for piano were sold out in this manner within two months and have never been reprinted.

The State takes good care of its tame artists, and does so in prominent cases very generously, far exceeding the minimum conditions laid down by the law. But copyright in its true sense remains an empty gesture.

In spite of the apparent weakness of this system of simultaneous award and expropriation of rights, some Western artists-mostly dissatisfied and disillusioned ones-believe that the magic formula has been found to rescue them from their brutal struggle for artistic and material existence. But there must be unsuccessful, dissatisfied and disillusioned authors in Russia, too, who do not share in the bounty available to the successful on either side of the Iron Curtain.

In the deliberations which led to the institution of copyright music played but a minor part. The text of the Berne Convention still names literature specifically, but lumps music along with 'the other arts'. Despite this, all further development at both national and international levels was dictated by music and by the technical progress to which it was increasingly subjected. Since the beginning of this century music has been a matter of concern for the legal profession. Before the First World War the legal nature of mechanical reproduction (mainly of music) had to be defined; and this was not as easy as it may appear. A judgement of 1911 described the phonographic cylinder as an interchangeable part of a machine, which had no independent existence within the meaning of copyright and which therefore could neither be said to constitute an infringement nor receive protection. Those cylinders, discs and perforated rolls could not be called 'graphic reproductions' either, since, having no graphic quality, they could not be read. There was no precedent to indicate the proper place for this novelty, and in the end special provisions had to be made in order to accommodate mechanical reproduction in the growing edifice of copyright. It was primarily for this purpose that most of the existing copyright acts were revised between 1900 and 1911. They declared the author the sole owner of the new right of mechanical reproduction. Reproduction without his consent would constitute an infringement in the same way as an unauthorized reprint would. 'Consent' always means money. A new source of revenue had been tapped, which was primarily to benefit composers.

This had hardly been achieved when broadcasting arrived on the scene. This provided jurists with more new problems, as it would fit into none of the laboriously devised categories of foreseeable and protectable uses of a work of art. Broadcasting was not a public performance. In its early years performances regularly took place in studios, to which the public was not admitted. Reception in the home was strictly private. There was no mechanical reproduction of the sound, only transmission. A new category had to be established which added this to the rights reserved exclusively to the author. A new rampart was built to keep the public at arm's length and add yet another source of income to those already existing. Film, sound film and magnetic tape rounded off the picture of the ever-growing means of making use of works of art in general and of music in particular.

The Berne Convention therefore found itself out of date and had to be revised in order to keep pace with developments, first in Rome in 1928 then in Brussels in 1948 and finally in Stockholm in 1967. While the revision of 1928 emphatically reasserted the moral and material protection of the artist in the face of technical innovation, the revision of 1948 produced some hesitation and doubts on the part of the legislators, who felt that they might have gone too far in their concern to protect the artist. Certain exemptions were introduced for broadcasting, public libraries and other institutions not dedicated to direct material gain-restrictions on the exercise of proprietary rights such as could not be applied to other, material types of property. The Stockholm revision has confirmed and tightened these restrictions, so, if it was music which had led to the refinement and extension of the notion of intellectual property, it is also music which has now caused a certain contraction.

Eventually, in 1952, the Berne Convention was supplemented by a Universal Copyright Convention designed to extend reciprocal protection, without cumbersome formalities, to those countries which were not signatories to the Berne Convention, especially the United States and the Latin-American republics. Only Russia again refused to participate. ('We have no political motives,' a high official of the Russian Trade Delegation in London said to me, 'but we cannot accept a convention of which Spain is a member.')

Among all the achievements in the field of copyright one rule deserves particular mention because it has done more than anything else to change the economic status of composers: the protection of public performance.

It was never too difficult to control performances of dramatic works, as the Societe des Auteurs et Compositeurs Dramatiques had proved. Long before there was any legal protection of dramatic performances opera-composers kept their orchestral scores and sold copies to the theatres at an inclusive price in lieu of royalties. It sometimes happened-Mozart, for instance, experienced it - that dishonest copyists made copies for themselves and sold them for their own profit in a foreign country, where no law or privilege protected the work. The first French Copyright Act introduced protection of the dramatic performance, and since the middle of the nineteenth century other European legislative bodies have followed this example-Verdi and Wagner made considerable capital out of it. But symphonic, instrumental and vocal music remained outside any such jurisdiction. It seemed that it would be impossible to control the innumerable performances that took place in a multitude of concert-halls and other places of entertainment, even if the principle had been recognized. Once such a work was printed and distributed it had to be left to its fate, and the composer had to be content with his sheet royalties.

The story is told of a long-forgotten French composer of light music who once dined at a Paris Cafe-Concert while the orchestra was playing some of his work. When he was presented with the bill for his dinner he refused to accept it: if his music was played without any payment being made to him, he said, he would not pay for his dinner. The matter came before a court and the composer won his case. This was in 1849. A dramatic and ominous precedent had been established. Even the most benevolent observer must have felt it outrageous that, at least in France, orchestras, singers, violinists and pianists should be unable to carry on their professions without the composer's consent-for that was the real issue, at a time when old or unprotected music was unwanted and new, protected music was all the rage. No concert artist could have made a living by playing or singing only the old masters and not the works of Chopin or Liszt, Rossini or Auber. But a few months later, in May I850, the Agence Centrale pour la Perception des Droits des Auteurs et Compositeurs de Musique opened its offices and collected performing fees from concert-halls, cafes, restaurants and cabarets in the same way as the Societe dramatique did in theatres. In the first seven months of its existence it collected the sum of 7,500 francs, which was encouraging enough for it to continue with increased vigour. There was a great deal of noise and argument about it, but under the protection of tribunals and the police and of a legal monopoly conferred upon it the new Society became a considerable power.

Outside France, legal men had serious objections. It seemed to them unjustifiable that a man who acquired a copy of printed music, often for the express purpose of public performance, should not by the act of purchase also acquire the right to use it. Even composers and publishers hesitated to support the claims of their French colleagues, fearing a reduction in sales and performances. In Germany Richard Strauss worked on the authorities, members of parliament and public opinion until, in I903, a society similar to the French one was founded; most other countries then followed suit. The revised Copyright Acts eventually recognized the exclusive right of the composer to authorize all public performances of his works, dramatic and non-dramatic. Thereafter the former were called 'grand' rights, the latter 'small'-though there was nothing small about the financial benefits.

In the comparatively virgin soil of music there were thus discovered new mines of phenomenal yield, whose riches cannot be exhausted as long as music is publicly performed, transmitted by sound broadcasting and television or used in films. So far as fees are concerned it is immaterial how the performance is effected, whether by live musicians, sound-tracks, discs or tapes. Legislation could not have been more generous to composers and their lyric-writers, who are in a much happier position than poets, writers, sculptors, painters or architects. Public recitals of poems or novels are comparatively rare-they are intended to be read individually, and reading a book is the quintessence of privacy. Sculptures and buildings in public places may not be photographed for material gain without the sculptor's or architect's consent, but they are there to be looked at free of charge. Entrance fees may be payable at exhibitions of works of art, but they rarely go to the artist whose works are exhibited. Music, however, is not meant just to be read or looked at. Its very nature requires performance, and this deeper significance of the musical work, which will repeatedly engage our attention, finds expression in legal terms as well as in financial demands.

I could not therefore agree that the general protection of performing rights introduced a purely material element into the theory and practice of the rights of intellectual property. It has often been said that Richard Strauss, by his championship of the new laws, was taking revenge for the misery inflicted on former generations of composers. However, his was an act of extraordinary foresight. In 1898, when he started his campaign in earnest, he could not have known that, in the course of the changes music was to undergo, the traditional revenue of the composer would almost dry up. Without their income from performances and mechanical reproductions composers today would be much poorer than their hungriest predecessors. Sales of sheet music and the consequent royalties are lower than they were a century ago, but the revenue from performances and mechanical reproductions has reached fantastic proportions.

Everything which has happened in the field of copyright during the first decades of this century has conspired to entangle the fairest child of the muses in a web of claims and counterclaims. The more complete the protection of music becomes, the more painful the friction between the rights of the artist and the rights of mankind. As long as education and taste were largely the prerogatives of a well-to-do upper class, music and the other arts were counted among the more luxurious furnishings of life. The idea that an artist might rob mankind was inconceivable. Now, under a meticulous system of copyright, and with the coming o, mass education, the public-that is to say, the 'users' of the art-feel oppressed by the manifold demands of artists, and of composers in particular. This represents a fundamental change in the respective positions of the two parties and has led to the introduction of exemptions from the otherwise stringent laws which are just as illogical and arbitrary as the period of subsistence of copyright.

In a number of countries cultural, religious, charitable and educational performances do not require the composer's consent. A compulsory or legal licence replaces that normally issued on behalf of the composer, to whom, therefore, no payment is due. The performers, who sometimes-but not always supply their services free of charge, are publicly praised for their generosity; in extreme cases they are awarded medals and titles. But the generosity of the composer, being enforced by the law, calls for no recognition. The English Copyright Act of 1956 has even introduced a Copyright Tribunal, accessible to anybody who feels wronged by a charge for the use of copyright material, which can not only declare such charge to be excessive but can fix the price at which the author has to allow the use of his work. From such innovations one can gauge the degree of suspicion and uneasiness which has arisen between the artist and his public. There is a public lien on works of art, and especially on music, which will not allow the owner to open or shut the door to his work at will.

Other problems which could not have been foreseen when the idea of intellectual property was first propounded also presented themselves. The sharp light of jurisprudence revealed that the contours of artistic creation were not as clearly defined as the romantic notion of them had suggested. The compilation and codification of the first copyright acts coincided with the Industrial Revolution, and the creative mind was distracted by many new avenues of approach. It could be said that it burst its banks and flooded the lower fields of invention. The first version of the Berne Convention included among the protectable arts the 'applied arts', such as fashions, model dresses and model hats, which are certainly products of 'creation' but of a creation motivated more directly by material gain than by purely artistic considerations and which is therefore 'applied' creation, not intended to provide any lasting intellectual benefit. Although a system of national and international protection of patents and trade-marks, reminiscent of the old privileges, grew up alongside copyright, disputes are frequent and often unresolved: quite recently a rose-grower sued a gardener for the infringement of his copyright because the gardener had illicitly secured a cutting of a 'protected' rose.

The new copyright acts which, after the Second World War, had to cope with new conditions were not drafted with the cool detachment such delicate matters required. They came into being amidst a clamour of demands and protestations from many quarters. Music, which formerly had stood modestly in the background, became the main target. The new technical advances with all their consequences introduced whole new classes of participants in the creative process, all of whom claimed a legal share in both protection and profit: the manufacturers of gramophone records, the producers of films and television programmes, even the cameramen and, last but not least, the army of professional performers. The creative contributions of all these new shareholders in the great enterprise of copyright are naturally limited, conditional upon the original works which they serve, but their material interests are overwhelming. How the composer fares largely depends on them. So the record-manufacturer is given a copyright in recordings reproducing the works of someone else; the film producer has a copyright in a film using the intellectual property of someone else; television acquires a copyright in programmes which themselves consist of someone else's copyrights; the cameraman receives a copyright in the photography of someone else's ideas; and, finally, the performers enjoy a copyright in the performance of someone else's work. The legislators of the 1950s would have been better advised to distinguish between the creators of original works and all those who render important but ancillary services, rather than to graft more and more 'secondary copyrights' on to the basic intellectual property.

While it could be argued that gramophone records, films and television programmes still complied with one fundamental requirement of copyright by being exclusive while they lasted, the same argument does not apply to performers and their performances. A work such as Benjamin Britten's 'Variations on a Theme of Purcell' has several hundred performances every year, some of them simultaneous, in different places, and all those conductors and orchestras acquire the same right in their particular rendering of the work. It may have been with this anomaly in mind that performers' rights were officially termed droits voisins, 'neighbouring rights'. We shall have to consider these in greater detail, because they open up a view of present-day musical life which the legislators themselves may not fully have envisaged.

Artists, and composers in particular, find themselves surrounded by a whole crowd of co-artists or 'neighbours' threatening to engulf them by their numbers and material power. If it was once preferred, in all matters concerning intellectual property, to camouflage material interests by disguising them as ideals, such modesty-or hypocrisy-has been abandoned in this latest development. It is the material interests, which would not have been secure enough under the less rigorous protection of industrial rights, that have forced themselves upon copyright itself. In a most remarkable manner the original, idealistic conception of intellectual property is thus rapidly silting up. Nothing has brought mind and money closer together than this tendency of modern legislation to procure a share in the financial proceeds for every executive in the industry which has developed around music. As essentially industrial rights and copyrights are merged into a single legal entity, protection of the artistic creation itself has almost become a secondary purpose.

All this has tended to make copyright extremely complicated-so complicated, indeed, that neither the artist nor the tens of thousands of people who daily come into contact and conflict with it are able to understand all its implications. The new rights of self-appointed co-authors and the droits voisins of the performers should not, in the intention of the legislators, impinge on the basic copyright of the author proper; but this is just what must inevitably happen. If a public concert is to be broadcast permission is required from both the composer and the performers, and if one of them withholds it his-involuntary-partner must suffer. Innumerable 'users', such as publicans and cafe- and restaurant-proprietors who entertain their clients by playing records or tapes, are often unaware that, unless they have first obtained a whole series of licences, they are committing a punishable offence: a licence from the composer to play his work in a public place; one from the same composer to play it by means of a mechanical reproduction; one from the manufacturer of the mechanical reproduction; and finally one from the performers whose rendering is mechanically reproduced. This is clearly too much for what must appear to be one single use. No wonder that the multitude of small users find themselves perpetually on the brink of prosecution and that actual offences, in spite of a fairly widespread system of control and supervision, occur daily.

When one has to deal with constant inquiries, demands and complaints, as the publisher has, one becomes aware of the atmosphere of dissatisfaction which surrounds copyright today. There can be little doubt that protection of the composer has passed its peak. The future development of musical copyright will have to revoke some of the rights granted by an over-zealous legislation under the impact of technical change. In the meantime, music will have to tread the hard road of money and commerce.