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.
âJohann Vesque von PĂźttlingen, Das musicalische Autorrecht (1864)
Between Nationalism and Free Trade
From Reprinting to Authorship
It was Michel Foucault who made the suggestionâwhich forms the foundation of this bookâto examine the manifold epistemological dimensions of the law.1 Foucaultâs 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 âpivotal point for individualization in the history of the mind, ideas, and literature, and in the history of philosophy and science.â3
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 mythâmaintained in law to this dayâof 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 DĂźrer 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 authorsâ 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 publishersâ 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 Bosseâs study, written in the context of Freiburg during the incubation period of new German media studies, on the âdevelopment of copyright from the spirit of the Goethe eraâ: âWork authorityâ (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 VerĂśffentlichung, 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 opĂŠra 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 âcounterfeitingâ abroad and insisted on reciprocal recognition of authorsâ 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 (âduring his lifetimeâ) and his heirs (for thirty years) held the right to âreprintingâ and âreproduction,â a right that could be transferred:15 âEach new reproduction, if performed without the approval of those holding exclusive authorization ⌠is considered reprinting and is prohibited.â16 This right also applied to musical compositions. Compositions were protected more stringently than texts: While the âverbatim quoting of individual passages of a work already printedâ was not classified as reproduction for texts, âextracts, arrangements for individual instruments, and other adaptations that cannot be considered individual compositionsâ were prohibited for compositions.17
The Austrian law awarded right of ownership to the âcreatorâ of a âwork,â meaning âthe person who originally wrote or made it.â This protection applied in Prussia and the German Confederation.18 The right âto use his products as desired, to reproduce and publish them in any formâ and âto transfer these to others, in whole or in partâ 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 âthemata of musical compositionsâ as well as âvariations, fantasias, etudes, pot-pourris,â and âarrangements.â20
The 1853 discussions about the revision of the Austrian law of 1846 showed that the protection of authorsâ 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, Franceâs demand for mutual recognition of authorsâ rights was rejected in Austria as a threat to the interests of Austrian composers and music dealers due to Franceâs stricter protection of literary and artistic property and the strong position of the French music trade.22 The discussion of authorsâ rights was influenced by antagonism toward France: Authorsâ rights served as a means of fighting Franceâs cultural allure, the dominance of French music (which âcan be marketed outside France due to the prevalence of the French languageâ),23 and the market strength of French publishers (âit is already a fact that artists of note turn to Paris to publish their works in that very placeâ).24 The protection of successful Austrian exports (âthe compositions of Beethoven, Schubert, Proch, Strauss, and othersâ) was weighed against free rein for the small fishes in the âdomestic industry.â25 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 PĂźttlingen wrote the first monograph about âmusical authorsâ right(s).â26 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 âspeculationâ (for example through separate printing),27 economic value could be found in even âthe smallest piece(s) of music.â28 It was not orchestra scores that were âsought out by a large audienceâ but piano scores and opera motifs, and this work was âexploitedâ: âWhile 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.â29 Because âindividual, blessedly invented melodies often enjoy popular appeal,â it was in the interest of the public and the composer âto publish these as independent works of art.â30 The composer and jurist wanted to see musical authorsâ 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 âpecuniary exploitationâ)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 authorsâ rights.33 Richter legitimized the âright to exploitationâ34 for works of science and art based on their contribution to progress and development. He explained that science and art are âimportant factors in civilizationâ35 and that âintellectual work [is] a condition for economic development.â36 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 âeducationâ and the higher the âgeneral level of sophistication,â the lower the âvalue actually placed on intellectual work.â38 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 lawâadopting the concept of reprinting: âToday, 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.â39 He declared âthe unauthorized and therefore criminal encroachment on the exclusive right to exploit works of art and scienceâ 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 authorsâ rights, drew a firm line between the new authorsâ rights and old privileges (reprinting rights for publishers). He too justified this distinction with an economic argument, that o...