Missing Expertise

There has been an interesting small exchange on the SMT (Society for Music Theory) list* about the role, or rather lack thereof, that music scholars have been playing in recent copyright law innovations. While it appears that some jurisdictions -- Canada, for example -- have taken the input of musicologists and theorists seriously in preparing new law, in the US, the voices of creative artists and authors as well as those of scholars with critical perspectives and deep insight into both the substance and history of art forms are rarely consulted and when consulted, they are inevitably shouted out by representatives of the entertainment and entertainment technology "industries" and, unfortunately, in copyright law, it is often the case that as the US goes, the rest of the world will follow in the spirit of legal "harmonization". **

Musicians deal with copyright issues all the time, and whether it's securing a license for a recording or photocopying sheet music for classroom use, the problems are non-trivial and require increasing sophistication to navigate. The role of copyright in the history of music has long been non-trivial: from renaissance composer-publishers who had to curry royal favor to secure licenses -- and sometimes monopolies -- to print music or the ridiculous lengths required to receive copyright protection under multiple jurisdictions (the physical presence requirements needed to secure US rights to the operas is one of the most interesting parts of the Gilbert & Sullivan story).

Despite its importance, the study of music and the law -- in addition to the broader study of institutional structures and music making -- has been an under-emphasized specialty for music scholars.*** Legal scholars are more likely to be consulted on the development of new laws or policy concerning music than musical scholars, although musicologists and theorists may well have critical information about the substance and practice of music to bring to the discussion. Some legal practitioners have already recognized the value of musical scholarship to tort law: a small number of academically-trained musicians have made ancillary careers as so-called "forensic musicologists", testifying in copyright disputes as to the similarity of musical works or the contributions of individual artists to collaborative efforts. But musical academia has been relatively slow to reflect this area in their hiring practices and course content: musicologists are still mostly sought out for specializations that continue to represent the same eras and geographical regions that are reflected in course titles, and, although some specializations in cultural studies (e.g. women's studies) have been recognized, the legal and institutional history of music have not be sought-out specialties, although many eminent scholars have indeed devoted the greater part of their work to such topics. Some schools, more focused on the preparation of working musicians rather than scholars, have added faculty in the business of music, but my impression is that this has been taught entirely as a practical subject, not one with legal and historical depth, and frequently an area in which a great potential to substantially affect the production of music has been realized (for better or worse).

If I criticize music scholarship (see here, for example), it's because I treasure its accomplishments, believe deeply in its potential, and want it to be both better done and better received. At the very least the state of music scholarship is sign and symptom of how seriously music itself is taken by academe and the larger world. Music scholarship has to be more vital, present, and timely, precisely because music is important and more than just entertainment. The alternative -- in which music scholarship and the world about it blissfully ignore one another -- is not acceptable.
_____
* The discussion thread was initiated by Prof. David Huron of Ohio State. Allow me to quote one part of his message: All over the world, countries are faced with legislative challenges concerning copyright, cultural organizations, maintaining cultural identifies in the face of globalization, and many other challenges. Have music scholars anything to offer? Where is the policy expertise in music departments and conservatories? At the very moment when decisions are being made that will affect musical culture -- possibly for the next several centuries -- we are silent. What policies will best serve the public? Almost none of us have thought about this. The truth is, we have almost nothing to offer. Scholars in the law schools, engineering, and business have thought more about the future of music than we have.

**The pair of American legislative disasters from 1998 --the Sonny Bono**** Copyright Term Extension Act and the Digital Millennium Copyright Act -- have created a particularly unwieldy body of law which, as far as recent experience can tell, is transparent and advantageous to only to those with sufficient professional legal resources (the corporate owners of Mickey Mouse's name and image, for example). For us plain musician-folk, the benefits are not apparent, but burdens are evident everywhere, making for the worst bit of "copyright protection" since the days in which purchasers of DAT recording tape were taxed by the largest copyright owners for content, even when recording their own music. The present popular willingness to simply disregard copyright by consumers faced with laws that say you can't copy this, but being sold machines -- often by the same owners of the copyright content -- that make copying all-too-easy and evermore accurate, perhaps even beats the social acceptance of cheating on taxes or spouses, lying about age or weight, or even refusing to admit to googling one's own name.

***Huron does report that the ethnomusicologist Marc Perlman recently took a year's leave to study intellectual property at Boalt Hall. Perlman -- who was ahead of me in grad school -- is one of the sharpest music scholars out there.

**** A name I thought would never appear in this blog. Oh well, never say never. Rest assured, however, that, under the motto "once a philospher, twice a pervert", said name shall not reappear in these pages.