Theo Wyatt

(originally published in the Journal of the Cobbett Association)

There is quite enough in this life to get indignant about; you will probably not thank me for pointing out how you, a harmless chamber music player, are shamelessly exploited by legislation framed at the behest of the vested interests of the publishing industry. But you are.

We would none of us want to go back to the days in the 18th century when Mozart got a single fee for composing The Marriage of Figaro and then had to watch helplessly as his tunes were exploited free of charge by every organ-grinder in Europe. There is no question that a composer ought to have control over the exploitation of his compositions and deserves to be rewarded whenever they are printed and published or performed. And we can all applaud the efforts that were made in the late 19th century to put an international copyright law on to the statute books of Europe so that the works of (say) a French composer were not subject to pirating in England .

The notion of national copyright goes back to 15th century Venice and 16th century England, but was cynically used in those times by rulers like Queen Elizabeth I who instead of paying a proper salary to her composer servants Thomas Tallis and William Byrd preferred to reward them with a monopoly of the printing of music and manuscript paper. Thus incidentally holding back the development of music printing in England for half a century.

The first copyright law designed for the genuine benefit of national authors and composers was the English Statute of Anne of 1710. It also established the idea that such protection should be of limited duration and set the period at 28 years from publication, after which the work could pass into the public domain. Similar laws were enacted later in the century by Denmark , USA and France , and in the 19th century by most other countries. The period of 28 years from publication survived in US law right down to 1978.

Elsewhere the length of the copyright period was being gradually ratchetted upwards. The English Copyright Act of 1814 set it at 28 years or the life of the author whichever was the longer. In 1842 it was extended to 42 years or the life of the author plus seven years, whichever was the longer. By 1911 it was increased to the life of the author plus 50 years, in accordance with the Berne Convention. In Germany the government had been persuaded to increase it to the life of the author plus 70 years. With the formation of the EEC and the consequent harmonisation of laws there was a need to choose between the 70 years in Germany and to 50 years everywhere else. Are you surprised to learn that the whole of Europe is now saddled with this ludicrous period of 70 years from the death of the author?

It is impossible even to begin a rational argument for this enormously long protection period, whether based on the needs of the composer's descendents or on the need of the publisher to recoup his investment. It is simply indefensible; but one can see why music publishers would lobby passionately for it when one considers how the industry is financed. In general it makes no profit at all from publishing and selling music; it is kept financially afloat by performance royalties. The Performing Right Society in the UK in 1998 had an income of £210 million and distributed £186 million to its members. And the beauty of this lovely stream of money is that it comes from a milch cow which does not even suspect it is being milked. Of that £210 million £18m. came from pubs, £8m. from restaurants, £8m. from clubs and £7m. from supermarkets, places in which you were subject to Muzak which you probably hated but which all had to be licensed by the PRS and all added imperceptibly to your bill. If you were a publisher who owned the copyright of an evergreen tune you would have every incentive to keep it earning for you for ever and ever.

Here is an example. Elgar who died in 1934 wrote Salut d'Amour in 1888 and, so the legend has it, sold the copyright to Schotts for £5. Schotts had the expense of setting and printing enough copies to establish publication, but there their responsibilities ended. Nevertheless from 1888 to 2004, a period of 116 years, every time that tune has been played in public anywhere in the world, Schotts have received or will receive a royalty payment insofar as the combined Performing Right Societies of the world are able to collect it for them.

Contrast copyright law with its first cousin, patent law. If you invent penicillin or the Hovercraft or the jet engine you will be given a patent which will last for between 16 and 20 years from the date you register it. Thereafter anyone may manufacture it. Why the huge difference between 16 and 116.? Very simple. Governments consume patented products in their Health Services and their armed forces and have a vested interest in striking a fair balance between the inventor and the consumer; they are not consumers of music or literature.

There is another major difference. If you are granted a patent and do not exploit it you can be forced to license it to someone who will. Not so with music. The publisher who owns the copyright of a piece of music can prevent your copying it, can prevent my printing it for you, can take a royalty off everyone who performs it, but is under no obligation whatever to keep it in print or to make copies available. Copyright law is a real dog-in-the-manger's charter.

What is the effect of all this on you, the harmless chamber music player? It means that you have very limited chances of being able to play the works of any composer who died after 1933 and who is not world-famous.. The commercial publishers may find it worth while keeping in print the quartets of Britten or Elgar orTippett or Shostakovich, But you will probably search in vain in their catalogues for Bax or Bliss or Bridge or Glazounov or Gliere. And if you do find a copy in a library or in a friend's collection you will not be legally allowed to copy it. You may think your luck is in when you spot in the Peters catalogue the Gliere Octet or the Richard Strauss Piano Quartet, but pursue your enquiries and you will find that you may not purchase these works but can only hire the parts at a fee of £40 a month - which you may think is a clear enough hint that the publishers would much rather you did not play them at all.

What would be an equitable length for copyright protection? I could go along happily with 20 years from publication to match patent protection. Quite long enough in today's mass markets for music to allow Sir Paul McCartney or Lord Lloyd-Webber to make enough to ensure that none of his children, grandchildren or great-grandchildren ever had to work. But of course reform will not happen. Indeed I would lay a small bet that when publishers nowadays meet at international fairs they discuss when would be the right time to launch the campaign for the increase in the copyright period to 100 years from the death of the composer.

So perhaps we should just console ourselves by reflecting that the music of Haydn, Mozart and Beethoven is nobody's property and that nothing written by a composer alive in 1933 can match it.

Footnote

Since this article was written it has been reported that Disney Corporation has paid $300 million for the merchandising rights arising from the works of A.A. Milne. Here is a perfect example of the abuses which our copyright laws make possible. A.A. Milne died in 1956 so his works are copyright until 1 st January 2027 . In the 1920's he wrote two justly popular childrens' books about the toys of his son Christopher Robin. They had memorable names such as Winnie-the-Pooh, Piglet, Eeyore, Tigger, Kanga, and Roo. Exclusive ownership of those names for the next quarter of a century has now been sold to Disney. Why are they so valuable? Because millions of parents reading the stories to their infants at bedtime over the last 80 years have invested the names with a layer of nostalgia which manufacturers of consumer products are keen to exploit. If you make a mobile phone you may well reason that your teenage buyer is likely to choose it in preference to its many competitors if it carries a name such as Tigger which unerringly links it in his or her subconscious mind to a warm bed and a loving parental presence.

None of this, needless to say, has anything to do with the reliability of the phone. Nor with the artistic worth of A A Milne's original creation. Only two things are certain. If you bought the phone it will have cost you more than it need have done because the manufacturer will have paid Disney a handsome licence fee for use of the name that kidded you into picking it. And a law which allows anyone to buy and exploit a monopoly of such universally loved names needs reform.