Authors and Apparatus

A Media History of Copyright

Monika Dommann, Sarah Pybus

• Publisher: Cornell University Press
• Year: 2019
• ISBN:
  9781501734991
• Topic: Derecho
• Subtopic: Ley de derechos de autor

Copyright is under siege. From file sharing to vast library scanning projects, new technologies, actors, and attitudes toward intellectual property threaten the value of creative work. However, while digital media and the Internet have made making and sharing perfect copies of original works almost effortless, debates about protecting authors' rights are nothing new. In this sweeping account of the evolution of copyright law since the mid-nineteenth century, Monika Dommann explores how radical media changes—from sheet music and phonographs to photocopiers and networked information systems—have challenged and transformed legal and cultural concept of authors' rights.

Dommann provides a critical transatlantic perspective on developments in copyright law and mechanical reproduction of words and music, charting how artists, media companies, and lawmakers in the United States and western Europe approached the complex tangle of technological innovation, intellectual property, and consumer interests. From the seemingly innocuous music box, invented around 1800, to BASF's magnetic tapes and Xerox machines, she demonstrates how copyright has been continuously destabilized by emerging technologies, requiring new legal norms to regulate commercial and private copying practices. Without minimizing digital media's radical disruption to notions of intellectual property, Dommann uncovers the deep historical roots of the conflict between copyright and media—a story that can inform present-day debates over the legal protection of authorship.

Part I

Writing and Recording

Chapter 1

Sheet Music

Not every author is a capitalist; not everyone, in fact only the minority, is capable of earning a living outside of the literary or artistic discipline to which his special nature is often irresistibly drawn.

—Johann Vesque von Püttlingen, Das musicalische Autorrecht (1864)

Between Nationalism and Free Trade

From Reprinting to Authorship

It was Michel Foucault who made the suggestion—which forms the foundation of this book—to examine the manifold epistemological dimensions of the law.¹ Foucault’s seminal shake-up of legal and criminal history cannot be valued highly enough; this also goes for the history and theory of copyright. Foucault grasped the explosive social power of the concept of authorship at a very early stage when, in 1969, he asked the fundamental question of what defined an author.² He identified authorship as the “pivotal point for individualization in the history of the mind, ideas, and literature, and in the history of philosophy and science.”³

In a sense, the focus of the historical approach to copyright on the emergence of legal and aesthetic author concepts in the eighteenth century followed on from the origin myth—maintained in law to this day—of the civilized author in the eighteenth century.⁴ Up to this point, publishers secured the right to publication by means of privileges granted to them by rulers.⁵ However, isolated instances can be found as early as the fifteenth century in which artists used authorship to control reprinting: In the 1490s, Albrecht Dürer used his monogram to gain control of the production process for his prints, and as far back as the sixteenth century writers brought actions against plagiarism and demanded exclusive publication rights. Reprinting privileges were granted by the sovereign. It is clear that the granting of privileges often depended on the approval of the censorship authorities. In law, the British Statute of Anne of 1710 is commonly referred to as the start of authors’ rights. At its core, this was a copyright that restricted the old tradition of monopoly and was initially conferred for fourteen years (with the option to extend it for a further fourteen years). The idea of the author as the person upon whom the copyright was based was therefore placed at the center, but also incorporated due to publishers’ interests. As Martha Woodmansee demonstrated for Germany, the birth of the author in the eighteenth century bore the hallmark of writers attempting to secure their social, economic, and symbolic position in the face of radical socioeconomic and sociocultural changes.⁶ Eighteenth-century aesthetic and legal discourses influenced one another; legal knowledge played a significant role in aesthetic notions in eighteenth-century literature, art, and music.⁷ Legal concepts were not simply an expression of the Romantic culture but genuinely helped to shape it through legal practice.⁸ These legal concepts were themselves shaped by the change in printing techniques, as emphasized by Heinrich Bosse’s study, written in the context of Freiburg during the incubation period of new German media studies, on the “development of copyright from the spirit of the Goethe era”: “Work authority” (Werkherrschaft), the specific relationship between a creator and work that was institutionalized in Germany in copyright reforms at the start of the nineteenth century, is also to be viewed against the introduction of the rotary press, which mechanized and hugely accelerated printing technology in the mid- nineteenth century.⁹

Compositions in the Competition of Nations

Early modern printing privileges also included music, but only because, as printed matter, sheet music was protected against reprinting. The French law of 1793 was the first to explicitly mention compositions; elsewhere, composers were not declared to be authors until the 1830s and 1840s: in the U.S. in the Copyright Act of 1831,¹⁰ in Prussia in 1837 in the Gesetz zum Schutz des Eigenthums an Werken der Wissenschaft und Kunst gegen Nachdruck und Nachbildung ¹¹ (Act for the Protection of Ownership of Works of Science and Art against Reprinting and Replication), in Great Britain in the Copyright Act of 1842,¹² and in Austria in 1846 in the Patent zum Schutze des literarisch-artistischen Eigenthums gegen unbefugte Veröffentlichung, Nachdruck und Nachbildung ¹³ (Patent for the Protection of Literary and Artistic Property against Unauthorized Publication, Reprinting, and Replication). The concept of reprinting linked with early modern privileges was subsequently reinterpreted as a concept of reproduction that assigned the protection of the integral work to the composer.

This book shall analyze the contexts in which this new, legally influenced concept of reproduction emerged and their underlying cultural codes. Law may describe these changes as a continuum and jurists may emphasize analogies, but from a historical perspective they must be characterized as a caesura or epistemic break: First, what had previously been a discourse of aesthetics and law was increasingly displaced by economics and law. Second, with mechanical music, music media developed beyond familiar communication in the language of musical notation and outside the attention and control of the publishing system.

The new legal concepts for music are to be viewed in the context of debates about national legislative processes and the internationalization of copyrights. In France, for example, vaudeville artists were criticized because they incorporated passages from the repertoire of opéra comique and other vaudevillians into their shows and choral singing and because they were supported by a ministerial decree of 1807.¹⁴ In the mid-nineteenth century, the French state also began to take systematic action against “counterfeiting” abroad and insisted on reciprocal recognition of authors’ rights. The Prussian law of 1837 on the ownership of works of science and art could also be used by authors in all countries that granted protection to Prussian publications. The author (“during his lifetime”) and his heirs (for thirty years) held the right to “reprinting” and “reproduction,” a right that could be transferred:¹⁵ “Each new reproduction, if performed without the approval of those holding exclusive authorization … is considered reprinting and is prohibited.”¹⁶ This right also applied to musical compositions. Compositions were protected more stringently than texts: While the “verbatim quoting of individual passages of a work already printed” was not classified as reproduction for texts, “extracts, arrangements for individual instruments, and other adaptations that cannot be considered individual compositions” were prohibited for compositions.¹⁷

The Austrian law awarded right of ownership to the “creator” of a “work,” meaning “the person who originally wrote or made it.” This protection applied in Prussia and the German Confederation.¹⁸ The right “to use his products as desired, to reproduce and publish them in any form” and “to transfer these to others, in whole or in part” was also granted to customers, publishers, and businesspeople as well as to heirs and legal successors.¹⁹ The Austrian law permitted more liberal use of music by other composers than the Prussian law: In Austria, it was permitted to use “themata of musical compositions” as well as “variations, fantasias, etudes, pot-pourris,” and “arrangements.”²⁰

The 1853 discussions about the revision of the Austrian law of 1846 showed that the protection of authors’ interests was not the only thing at stake and that copyrights also served as national instruments and cultural combative measures. These discussions took place in chambers of commerce and trade, among writers, publishers, and book and music dealers.²¹ However, France’s demand for mutual recognition of authors’ rights was rejected in Austria as a threat to the interests of Austrian composers and music dealers due to France’s stricter protection of literary and artistic property and the strong position of the French music trade.²² The discussion of authors’ rights was influenced by antagonism toward France: Authors’ rights served as a means of fighting France’s cultural allure, the dominance of French music (which “can be marketed outside France due to the prevalence of the French language”),²³ and the market strength of French publishers (“it is already a fact that artists of note turn to Paris to publish their works in that very place”).²⁴ The protection of successful Austrian exports (“the compositions of Beethoven, Schubert, Proch, Strauss, and others”) was weighed against free rein for the small fishes in the “domestic industry.”²⁵ The commission therefore recommended that decisions on the mutual international recognition of rights be made on a case-by-case basis through diplomatic channels.

The Value of Works

Music rights were outlined only briefly in the legislation. In the 1860s, legal and economic commentaries began to discuss them in more detail, and the tone changed, the aesthetic/legal perspective displaced by economic/legal approaches. In 1864, Viennese jurist and composer Johann Vesque von Püttlingen wrote the first monograph about “musical authors’ right(s).”²⁶ A state official of noble birth who also composed operas, masses, and songs, he formulated a concept for musical works that aimed to secure a middle-class professional existence for composers. He viewed compositions within the parameters of potential exploitation: While literary fragments were not suited to “speculation” (for example through separate printing),²⁷ economic value could be found in even “the smallest piece(s) of music.”²⁸ It was not orchestra scores that were “sought out by a large audience” but piano scores and opera motifs, and this work was “exploited”: “While just a few copies of the orchestra score are sold for the purpose of public performance and such scores are therefore not printed at all, but used only in manuscripts, copies of the piano score circulate in their thousands, at great advantage to the composer.”²⁹ Because “individual, blessedly invented melodies often enjoy popular appeal,” it was in the interest of the public and the composer “to publish these as independent works of art.”³⁰ The composer and jurist wanted to see musical authors’ rights formulated as commercial rights with the comprehensive power of disposal that also encompassed fragments of musical works (arrangements or short extracts).³¹ His focus was on the value of works (their “pecuniary exploitation”)³² or, to put it another way, legal protection for capitalist composers.

One year earlier, in 1863, German economist Karl Richter formulated an economic justification for authors’ rights.³³ Richter legitimized the “right to exploitation”³⁴ for works of science and art based on their contribution to progress and development. He explained that science and art are “important factors in civilization”³⁵ and that “intellectual work [is] a condition for economic development.”³⁶ He stated that music requires particular protection under international law because, in contrast to literature, it can be understood by all, it is (therefore) generally available, and there are no cultural restrictions to its exploitation.³⁷ Richter advocated a sort of pricing theory for intellectual work: The greater the “education” and the higher the “general level of sophistication,” the lower the “value actually placed on intellectual work.”³⁸ By suggesting that prices would decrease for intellectual work, he implied that it required legal protection.

Karl Richter accomplished what had previously been implied in Prussian law—adopting the concept of reprinting: “Today, this term has only a historical context, because the first legal infringement to be recognized as such was, in fact, simply the exploitative reprinting of a printed book or written work.”³⁹ He declared “the unauthorized and therefore criminal encroachment on the exclusive right to exploit works of art and science” to be the core of the crime. In this argument, reproduction and exploitation were directly connected.

Josef Kohler, who in the nineteenth century played a significant role in formulating the principles of twentieth-century authors’ rights, drew a firm line between the new authors’ rights and old privileges (reprinting rights for publishers). He too justified this distinction with an economic argument, that o...