by Jeffrey Tucker
The license called Creative Commons is increasingly popular as a way of publishing music, whether it is a free or paid download online or paid and commercially marketed physical edition. It should go without saying that all liturgical texts should be published under this license, as well as new works for use in liturgy. There is nothing new or techy about Creative Commons; it is nothing more than a restoration of the method for publishing in nearly the whole of Christian history before the 20th century (some exceptions including England during its religious struggles when copyright was used for censorship purposes). To publish into the common is the historic method, the way consistent with an evangelistic faith.
Here follows an explanation of Creative Commons and why it is absolutely necessary.
Unlike conventional contracts with publishers, in which the composer or typesetter, signs away all rights, and can even find himself or herself having ask permission to perform his or her own works, and even pay for the right to reproduce them, under Creative Commons, the author retains the rights to the work while “sharing” those rights with all people. Also unlike conventional copyright arrangements, others are not prevented by force of law from doing the same with the work in question, provided that (under the attribution form of license) the authorship is noted. An unlike conventional copyright, the publisher cannot deny the author the human right to his or her creation.
Again, Catholics are naturally suspicious of anything new, particularly as regards publishing so it is critical to note that Creative Commons is really not new. It is the same system of rights management that the Gospels were distributed under, and the chant was composed and written in the first millennium. It is the system under which the Liturgy of the Hours and the Mass were first published. It is the same system that Palestrina, Victoria, Josquin, and Di Lasso used in publishing their composition.
Much later, the same system was used by Bach, Mozart, Beethoven, and Brahms. All of them composed and published in age and place in which modern copyright as we understand it was unknown. For this reason, the influence of their original works could be spread far and wide. It was not caged behind some walls of exclusivity. Their work was a gift to the Church and the world. Everyone was free to distribute it, copy it, perform it, and borrow from themes for later composition.
Why the new name for an old system? The answer is that it is made necessary by strange developments in the modern copyright system. Copyright as we understand only became internationally enforceable in 1886. Before that, the first copyright system was born in England in 1709 following religious turmoil in which the sovereign power of the monarch was used to control what could and could not be published. On the Continent, copyright generally did not take hold until the 19th century, with the German territories as the freest nations.
In 1976, the U.S adopted a new law that both automatically puts a copyright on all publications, even without registration or notice, and enforces against the right to reproduce, create derivative work. to sell or rent copies, to perform, and the right even to display. The act was amended in 1995 to prevent even the right to perform a recording on digital audio. As for terms, copyright now cover the lifetime of the author plus seventy years. You do the math. It’s shocking.
What this means for composers is astounding. If they sign a contract with a publisher, they can kiss their rights goodbye. They will be 70 years in the grave before the composition sees the light of day outside some exclusive agreement. Nor is there an easy workaround here.
The reason Creative Commons is necessary is that this legislation is so restrictive that it takes a positive act of assertion to get around the problems that the nation-state has imposed. You can say “this is not copyright protected” but that raises a risk that someone else could take your work, copyright it, and prevent you from using it. This is why using the current system in order to restore the status quo ante is necessary in the first place. Hence, the innovation of Creative Commons as development by IP expert Lawrence Lessig. It uses the current system and finds the workaround.
If works are not published under Creative Commons, their dissemination is severely limited. The conventional copyright system establishes produces monopolies that permit firms such as GIA to charge royalties even on the Psalms, and punish anyone with fines and even jail for singing, printing, or displaying the Psalms.
It is a deeply tragic thing that the Grail Psalter, prepared by the monks of Conception Abbey, was sold under conventional copyright terms to GIA with a secret agreement, the contents of which are not being disclosed by anyone party to the agreement. What this means is that GIA will be in a position to take an arbitrary amount of money by force from Catholics in the pews just for the right to sing the Psalms. It is not at all clear that Conception understood what it was doing when it entered into this agreement, but it should go without saying that the Psalms are something that should be the common property of all Catholics. The way to achieve this is through Creative Common licensing. It is fully within the power of GIA to right now publish under this licensing system.
Now, let us clear up a main myth about copyright. It does not exist to protect the integrity of the text. The King James Bible is in the public domain and there is not threat to its integrity. The same is true of Douay-Rheims, the Book of Common Prayer, as well as nearly every other translation or liturgical text published before the 20th century. Integrity of texts is protected the old-fashioned way, by the private policing of communities of interest. The law does not do this. All the law does is prohibit anyone but the rights holder from copying or performing the work without permission and pay; that is to say, it establishes a form of monopoly that is a compete anachronism in the digital age.
The effect of copyright on liturgical materials often produces the opposite of protecting the integrity of texts. Composers and publishers of liturgical materials have gone so far as to eschew protected texts so they that will not have to pay royalties. A case in point in the Sanctus often used in parishes: “God of power, God of might.” That is not an approved text, but the composer and publisher in so using it did not owe any royalties to ICEL for having used its approved text, “God of power and might.”
Now, some people attempt to justify copyright based on Catechism of the Catholic Church, such as 2405: “Goods of production – material or immaterial – such as land, factories, practical or artistic skills, oblige their possessors to employ them in ways that will benefit the greatest number.” That strikes me as a passage that makes the case for Creative Commons, which does indeed benefit the greatest number. It says nothing about copyright. 2406 has also been cited in defense of conventional copyright: “Political authority has the right and duty to regulate the legitimate exercise of the right to ownership for the sake of the common good.” It is hard to see how that applies; in fact, it makes the opposite point.
The right to property that is scarce by its nature (my cell phone, my house, my tie, my physical book) is also exclusively owned by nature, and cannot also be common property. But the material governed by “intellectual property” has a different nature. It is infinitely reproducible. It can be owned by the first creator/author/composer and this ownership can extend to the whole of humanity. The digital age has brought this point home to us in a huge way. Ideas have that feature of the Divine, the capacity for infinite duplication.
In this sense, what is called “intellectual property” is a complete artifice of legislation, one that the Church should have nothing to do with if only because it depends on a mix of Church and State that violates Dignitatis Humane:
“This Vatican Council declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits…. it is necessary that religious freedom be everywhere provided with an effective constitutional guarantee and that respect be shown for the high duty and right of man freely to lead his religious life in society.”
There might be other alternatives to Creative Commons. There is nothing magic about those terms. The same can be achieved by printing the words: “The right holder to this manuscript retains those rights and agrees to share them under any conditions with anyone and under any circumstances with no royalties owed, provided the original source is noted.” Creative Commons is merely a short hand for saying the same thing.
Thus ends this short course, Creative Commons 101 for Catholics. Institutions like GIA and ICEL might think they can ignore this subject but events are going to overwhelm them, this much is guaranteed. It is not too late to do the right thing before the core moral problems of the current system become overwhelmingly obvious to the world.