Explanation of a Sad day: Golan v. Holder II

On January 18th the Supreme Court ruled (6-2) to uphold the Tenth Circuit Court decision to uphold a federal law that granted Congress unprecedented control over works in the public domain. I wrote a previous post detailing the arguments themselves. Some of the arguments that were made I agreed with. Some left me unconvinced. The outcome particularly affects Music Libraries, (This is of particular interest to me as a future Music Librarian) as I will outline for you here.

Public Domain

The Public Domain is an awesome pile of works that can be freely used by the public. — Now does this mean that you can quote from them in your school papers without citing it? No!!! It just means that you don’t have to pay them lots of money to buy the permission to quote them in your school paper. Musical compositions that are in the Public Domain are cost effective to perform. If you are performing a piece of music in the Public Domain, you have to purchase the sheet music (PURCHASE not photocopy), but you don’t have to pay royalties in order to perform it. If the piece of music you want to perform is still under copyright protection (ie Not in the Public Domain) you have to buy– or often rent– the sheet music for a lot more money and then pay the creator of the work (or her kids, or great-step-nephew-in-law, –or Michael Jackson’s estate in the case of the Beatles– or whomever now owns the rights) a lot of money for the permission to perform it. This is more expensive then most music ensembles can afford, so most music ensembles, including university music ensembles and community ensembles, and, well, pretty much anyone other than the New York Philharmonic or the London Symphony Orchestra, stick to performing music in the Public Domain. Students who are studying to become conductors or performers also stick to music in the Public Domain because when you are a starving graduate student you can’t afford to pay some guy thousands of dollars to rent the music to a symphony just so you can study it.

Copyright Law

Before this law went through:

  • Any work (meaning book, composition, painting etc) that was created (written, composed painted etc) by a person who was not at the time of the creation of the work a citizen or domicile of the United States of America, was part of the Public Domain.
  • A work by a citizen or domicile of the US entered the Public Domain (generally, there are some exceptions to this, but this is a good rule of thumb) 70 years after the death of the creator, or 95 years after the date of creation of the creator is unknown.

Now:

  • Any work that was created by a person who was not at the time of the creation of the work a citizen or domicile of the US is protected under copyright for the same length of time as the work of a US citizen.

This doesn’t seem to outrageous right? So tomorrow a woman in Russia and a woman in the US each writes a badass piece of music, both are now under the same copyright protection. That seems reasonable. Slightly annoying to those of us who want to play her awesome music, but reasonable.
But here is the bad part:
-This law grants protection retroactively. So all those works that were previously in the Public Domain because the creator was not a citizen or domicile of the US are not placed under Protection for the duration of the time they would have been under if the creator had been a citizen or domicile of the US. Example: Katia was born in Sweden. She wrote a cello sonata in 1950. She died in 1990. If she had been born in the US, her cello sonata would have been undercopyright until 2060, but she was born in Sweden, so her work was in the Public Domain. Now her cello sonata is protected from the date it goes into effect until 2060, because that’s the time frame it would have been if she’d been born in the US. Make sense?? Cool.

This means that works by Stravinsky, Shostakovitch and a lot of other foreign composers that have become a part of the standard repertoire for musicians were in the Public Domain before and now are under Copyright Protection. Which means that ensembles wishing to perform those works now must often rent the sheet music at high cost plus pay royalty fees. In the current academic climate everyone has lots of extra money to spend on royalty fees right? *insert sarcastic eye roll here* It also means that students wishing to study scores of this music will likely be unable to do so. And symphonic excerpts which have become part of the standard audition expectations will be difficult and expensive to acquire for students. Good thing aspiring musicians make so much money. *insert second sarcastic eye roll here*

So in short, it will make it prohibitively expensive for small, community and university ensembles to perform these works. The danger here is two-fold: 1) that students will not get the complete education they need and deserve, and 2) that these works will fall out of the public consciousness and that ALL MUSICAL PROGRESSION WILL BE STUNTED!!
Okay, perhaps that last sentence got a bit dramatic. But in all seriousness, if works are not performed they are less likely to be performed in the future. We love our {insert country outside U.S.} composers, we want to be able to play their awesome music.

Also, do we really want to give Congress the power to say, “Remember that stuff you had access to yesterday? Well, you can’t have access to it anymore.” I don’t think we do. Unfortunately, the Supreme Court did not consult me when making their decision— Rude.

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