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← Theft! A History of Music

November 17, 2010 - Professor Jennifer Jenkins, Director of the Center for the Study of Public Domain, will discuss the history of musical borrowing and regulation from Plato to hip hop.

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Showing Revision 14 created 09/28/2012 by Claude Almansi.

  1. [Bell]
    [Announcer] This is Duke University.
  2. (The Center for the Study of the Public Domain presents: "Theft! A History of Music"
    17 November 2010 - Duke Law)
  3. [James Boyle] Welcome to this lecture put on by the Center for the Study of the Public Domain.
  4. We bring - as part of our Center, we bring some of the leading figures in intellectual property
  5. to come and speak here and today, the same is true,
  6. but in this case we are introducing one of own:
  7. Jennifer Jenkins is the director of the Center for the Study of the Public Domain.
  8. She is a lecturing fellow, a senior lecturing fellow at the Law School,
  9. teaching classes in Intellectual Property, the Public Domain and Free Speech,
  10. and in music's copyright.
  11. She's also the author of a number of things:
  12. a comic book, which she co-authored with me and another one that she's going to talk about today,
  13. and an article - a very prescient article - on the American system of protecting, or in this case,
  14. not protecting fashion designs in intellectual property.
  15. Jennifer is a frequently quoted academic in the media.
  16. She has recently appeared in the New York Times, Newsweek, and on NPR.
  17. And today, she's going to be talking to us about her research project on the history of music. Jennifer.
  18. [Applause]
  19. [Jennifer Jenkins] Hem... so.
  20. Why did Plato argue that remixing music should be banned by the state?
  21. Why did the Holy Roman Empire encourage the use of musical notation?
  22. What threats were jazz and rock 'n roll supposed to present to society in mainstream culture?
  23. Would the development of genres like jazz and soul even be possible under today's legal regimes?
  24. These are some of the topics I'm going to talk about today, but with a twist:
  25. I'm going to describe to you a research project
  26. that Professor Boyle and I have been working on for about four years.
  27. A project that focuses on the history of musical borrowing,
  28. an over 2000 year exploration of the way that norms, aesthetics, law, politics, technology, economics
  29. have influenced the conditions of creativity in music
  30. and tried to limit the mutability of musical forms.
  31. The project has taken us in some interesting directions.
  32. For example, in 2006, we co-authored with professor Anthony Kelly
  33. who is in this room, a course composed of half law students, half graduate level composers
  34. that examined the way that musicians, on the one hand, and copyright law, on the other hand,
  35. view different types of musical borrowing.
  36. But the component of the project that I'm going to talk about today is a little bit different.
  37. So, as anyone of our students' generation knows, we are currently in the midst of the musical wars.
  38. On the one side, you hear about a whole generation of law-breakers,
  39. pirating and remixing music without authorization,
  40. completely indifferent to authors' needs.
  41. On the other hand, you hear about record companies
  42. resorting to the law to prop up an obsolete business model,
  43. while trying to criminalize new forms of creativity and access enabled by technology.
  44. And what our research showed us is that both of these accounts are both inaccurate and a-historical,
  45. and that the history of music that I'm going to talk about,
  46. can actually teach us a lot about today's debates.
  47. So we wondered, how should we present all of these findings to the public?
  48. So, one of the goals of our Center is - and of the Law School as a whole - is translation:
  49. taking abstruse legal or academic findings and research,
  50. and making those findings available and accessible to a wider audience.
  51. So, the form that we chose for translation in this instance is one that we used successfully in the past
  52. to explain Fair Use and copyright law to documentary film makers, namely -
  53. a comic book!
  54. That's - he's very generous, by the way - that's me, that's Professor Boyle flying in his -
  55. actually this suit looks very much like the one he's wearing here, [laughter] that's amazing!
  56. That's actually Professor Kelly and these are all the warrior zombies. [laughter]
  57. So, the comic book is called "Theft, A History Of Music".
  58. It's being co-authored by Professor Boyle from the Law School, by me and by professor Keith Aoki
  59. who works at the University of California at Davis,
  60. and while I'm going to tell you a little bit about our findings on musical borrowing,
  61. I'm also going to tell you about the adventures, frustrations, delights,
  62. of trying to present 2000 years of history in the form of a comic book.
  63. (The struggle to control music is a very old one)
    So my first theme today is that the struggle to control music is a very old one.
  64. There is something different about music.
  65. As we did our research, one of the things that struck us most
  66. was that music arouses very strong fears and very strong feelings
  67. that lead to persistent, repeated attempts throughout history to regulate and control music,
  68. whether legally, aesthetically or culturally.
  69. This is especially true when it comes to remix.
  70. Throughout history, there has been a persistent urge
  71. to police the boundaries of musical forms and genres.
  72. So, to take one example, here is Plato, as promised,
  73. inveighing against the dangers of musical music over 2000 years ago. In Plato's words:
  74. "This is the point to which, above all, the attention of our rulers should be directed:
  75. that music, and gymnastics,be preserved in their original form, and no innovation made.
  76. Any musical innovation is full of danger to the whole state
  77. and ought to be prohibited."
  78. So, Plato's arguing that musical innovation should be banned by the state.
  79. Now, the mixing of ancient musical modes, such as the Dorian, Phrygian, Lydian etc.,
  80. is obviously not the same as ...... to known mashing ups, radio head and jazzy (Jaycee?) radio head, (6:38)
  81. or DJ Earworm mashing up the year's greatest pop hits,
  82. but it's still fascinating to find that over 2000 years ago,
  83. people were still arguing about banning a form of mash-up.
  84. So, why would that be?
  85. (comic: "Remember that to the ancient Greeks, Music was part of a set of universal norms ... a deep logic of the universe which combined geometry and sounds, ethics, politics and beauty.")
    Well, if you see music as a reflection
  86. of the order of the cosmos, as the Greeks did,
  87. or as a mode of communication that can jump the firewall of the brain
  88. and communicate directly to the emotions,
  89. then of course, you would worry about remix, because the results of the wrong remix -
  90. (Comic: "Mixing musical forms was actually meddling with ethos, and the order of this cospos. It threatened Anarchy. So Plato did want some kinds of "sampling" forbidden. But not because of "property rights.")
    could be dramatic. [laughter]
  91. Star-spangled Banner not being well received by the ancient Greeks.
  92. So now, the Platonist view of music may seem outmoded - pun - so to speak.
  93. Most of us aren't Platonists anymore.
  94. But the belief in music's subversive power, about the danger of crossing musical boundaries,
  95. is an enduring one.
  96. So, these boundaries might be religious as with contrafactum (?)
  97. and sacred-secular borrowing in the Middle Ages,
  98. or cultural, or even racial
  99. (Etude Music Magazine: "Jazz Problem - Opinions of Prominent Public Men and Musicians" August 1924)
  100. So, this is the cover of the 1924 Etude Magazine that was brought to my attention,
  101. actually given to us by Professor Anthony Kelly here, from the Music Department,
  102. featuring the "Opinions of Prominent Public Men"
  103. - there were actually women featured in there, but the cover says "Men" -
  104. "and musicians on the Jazz problem".
  105. What's the problem?
  106. Here is a quote that I'm going to read from one composer,
  107. with rather racist concerns about stylistic mingling. He said, just from this issue:
  108. "Jazz is to real music what the caricature is to the portrait.
  109. Jazz originated from the dance rhythms of the Negro.
  110. It was at least interesting as a self-expression of a primitive race.
  111. When jazz was adopted by the highly civilized white race,
  112. it tended to degenerate it towards primitivity."
  113. So here the boundaries that are being policed are as much racial as they are musical.
  114. And this theme continued, whether it was composers such as this one,
  115. worrying about the corrupting powers of jazz on white music in the 1920's,
  116. or a few decades later, the segreationists in the American South,
  117. that wanted rock 'n roll banned, because they saw it as a subversive crossing of lines
  118. by Black R and P (?) music (9:21)
  119. that might corrupt, among other things, white womanhood
  120. and fill their heads with pounding rhythms and an attraction for African American performers.
  121. (Comic: "It wasn't only Hazz that made people scared... Here's George Wallace's speech writer, Asa Carter, on Rock and Roll...'[Rock is the heavy beat music of the Negroes. It appeals to the base in man; it brings out animalism and vulgarity...'"
    These are real quotes - I don't know if you can see them -
  122. from Isa Carter, who was George Wallace's speech writer.
  123. In other words, the segregationists thought that this was a form a musical miscegenation
  124. that would lead to actual miscegenation.
  125. Musical lines were race lines, and crossing them was dangerous.
  126. (Cartoon: "And peddling paranoia was a big business... 'Rock and Roll inflames and excites youth like jungle tom-toms.'")
    This is a preacher from the same amount of (?) time, and that's one of his quotes.
  127. 'Rock and Roll inflames and excites the youth like jungle tom-toms.'
  128. So, as you can see, Plato has had many strange intellectual companions over the years.
  129. So, another thing we want this comic book to show
  130. is the way that policies lines between the musicals runs as without actually seen as having a vital cultural role (??? 10:23)
  131. Now, related to remix is the phenomenon of musical borrowing.
  132. So these days, certain forms of borrowing - certain forms of music
  133. that relied on "borrowing" in quotations are seen as high culture.
  134. Take classical music.
  135. Here is Brahms, whose First Symphony ..... (?) so many similatities to Beethoven's works
  136. that the conductor Hans von Bülow called it Beethoven's Tenth [laughter]
  137. much to Brams's annoyance.
  138. There is - there are many translations of that particular quote and, you know
  139. I had to chose this one, but I wasn't able to find the definitive translation.
  140. But you get the gist: he didn't like it.
  141. And of course, this is only one of thousands of examples,
  142. because many forms of borrowing were accepted as fundamental compositional techniques
  143. during the various eras of classical music.
  144. There are actually distinct types of borrowing, each viewed as legitimate in its own way.
  145. So, how are we going to present this musical research in comic book form?
  146. We went with the classics
  147. (comics page)
    [laughter] Super Mario brothers, except for it is Super Berio Brothers.
  148. Berio is a 20th century composer whose composition Sinfonia borrowed from everyone.
  149. I'll just list a few: Mahler, Schoenberg, Debussy, Verdi, Brahms, Ravel, Stravinsky, Beethoven, Strauss, Bach -
  150. just to name a few composers.
  151. Ehm - Super Mario brothers.
  152. (comics page with types of borrowing)
    So in these slides, you see
  153. - we tried, we tried to be faithful to the game -
  154. we describe some of the different types of borrowing, such as modeling, for example.
  155. So, John Williams theme from Star Wars is on Holst's composition "The Planets".
  156. Or quotations: Tchaikovsky's "1812 Overture" conjures the Russian and French armies
  157. by including their national anthems.
  158. So, extensive borrowing has been a part of many genres.
  159. Take Jazz - that's another example where borrowing and quotation were essential to composition.
  160. (Comic: trumpet player saying "You can't steal a gift!")
    Dizzy Gillespie - a pretty good rendition, I think.
  161. Famous quote: "You can't steal a gift!"
  162. So, of course now, we see many of these kinds of borrowing as high art,
  163. not as something that is shady or reprehensible.
  164. But years from now, will this also be the fate of today's hip hop art,
  165. whose borrowing through sampling is often condemned...
  166. (Comic: 1. Woman: "But Jazz was just as controversial in its Heyday!" Man: "...makes you wonder how people will be talking about rap in 200 years..." 2. court scene read aloud by Jenkins afterwards )
    ... as theft?
  167. [Jenkins, reading] "Your honor, what I am doing is really no different than what the esteemed Snoop Dog or Ul' Wayne did in the early days of the 21st century..."
  168. "You dare compare yourself to a classical rapper!!!!!???" [laughter].
  169. We shall see if this is the future we have to look forward to.
  170. So, the first theme today, is the struggle to control music,
  171. it's a long one and has patterns that repeat.
  172. And the struggle frequently has overt political or cultural overtones.
  173. It is a battle over the shape of culture,
  174. and persistent concerns about remixing music, all the way from Plato to the present,
  175. have existed alongside a long and rich tradition of borrowing in music.
  176. So, that's our first theme, leading on to my second theme: technology.
  177. (Technologies are unruly, and we are bad at predicting their effects...)
    Technologies are unruly.
  178. So the history of music is bound up with technologies that enable its production,
  179. its reproduction, its distribution.
  180. And I mean technologies in the widest sense:
  181. everything from musical notation to player pianos, grammophones, high quality printing presses,
  182. all the way through to peer-to-peer file sharing.
  183. So one conclusion that emerged from my historical research in this area is that
  184. we, our society, our lawmakers, are remarkably bad at predicting the effects of new technologies.
  185. So, one great example is the process of musical notation itself.
  186. The ancient Greeks and Persians had musical notation of a sort and in fact,
  187. (Greek MS entitled "Song A - P. Yale CtYBR inv. 4510)
    some of the manuscripts are remaining:
  188. this is an actual manuscript of early Greek notation,
  189. though there is some debate as to whether we can actually read that notation
  190. and figure out what the music sounded like,
  191. (Comic: "So the Greeks certainly had notation, though it seems to have been used infrequently - as a historical record of songs, not something musicians used every day." "We used to think we'd never know how these tunes sounded - Now, some scholars think they can make a pretty good guess").
    This is how we described it in the comic book.
  192. But the skill of notation, after that, was lost in the West
  193. and wasn't reinvented until sometime in the Ninth Century.
  194. (A hand with musical staffs and Latin words under them)
    So here is the Guidonian hand:
  195. a Twelfth Century mnemonic device to help singers sight-sing from notation.
  196. Why was notation reinvented?
  197. The Holy Roman Empire played a prominent role in spreading and encouraging the use of notation.
  198. Its goal was a simple one: uniformity and control over sacred Church music.
  199. So, until the reinvention of notation to ensure a standard form of music,
  200. they actually sent around a standard reference choir
  201. to sing in each of the cathedrals of the Empire
  202. to make sure that it was one Church, one Mass, one song.
  203. Notation meant that they didn't have to do this anymore.
  204. It meant that the Church dictates about music - only monophonic music, only the human voice,
  205. no accompaniment, only the approved tunes and chants - could be imposed form afar,
  206. bringing musical uniformity to the breadth of the Empire. Or so they thought.
  207. (Comic: "Though it's not clear how precise the notation was... At first, it was simple signs like this above the words to indicate when the tune went up or down.
    But notation actually helped people supplement, innovate... and then preserve an transmit tunes they created)
    By the way, we time-travel in the book.
  208. and we do so and the doctor who taught us,
  209. which is hurtling into space there - another one of our decisions in presenting it -
  210. So, in fact, of course, notation did something very different as well.
  211. It allowed composers to experiment in ways that they could never have done before,
  212. particularly in polyphonic music, music with multiple melody lines.
  213. It allowed the sharing and the borrowing of music by people who had never met face to face,
  214. or ever heard the same live piece of music.
  215. So notation, a technology intended to produce uniformity, to squelch experimentation and remix,
  216. actually ended up enabling all of those things.
  217. So, time and time again, our confident predictions about the effects of new technologies and regulation
  218. on music turn out to be outdone by events.
  219. And it's not clear that we're much better today in predicting the effects of technology
  220. than we were in the Holy Roman Empire.
  221. So, a slightly more recent example, from the early 1900's:
  222. (Slide: read aloud by Jenkins:)
    Now it seems (?) "When technologies change the patterns of costs and benefits,
  223. incumbents turn to the state for recourse"
  224. So in the late XIXth century, the disruptive technologies of the day were player pianos.
  225. Has anyone ever seen...?
  226. I always talk to my students about that as some people have heard of them, some people haven't.
  227. It's a little mechanical piano roll,
  228. and it actually makes the piano play the ragtime music or whatever it is that you're into.
  229. So, at the time, copyright law only covered the printing and public performance of musical compositions.
  230. It did not cover the mechanical reproduction from making a player piano roll
  231. or a disc or cylinder for phonographs or grammophones.
  232. (Comic: about player piano and Edison's invention of the phonograph)
    Here's some of the techology that we are talking about.
  233. So the composers and music publishers, when these new technologies came out,
  234. went to Congress, claiming that these technologies were effectively stealing their property
  235. and demanding that the law - the copyright law - should be changed to reflect that fact
  236. and insure remuneration for every one of the piano rolls or discs that was produced.
  237. So here is composer John Philip Sousa, who you may be familiar with:
  238. His marches, which are played in marching bands,
  239. at least I did - have you been unlucky enough to be subjected to that in high school ? -
  240. (Comic)
    So, here is John Philip Sousa.
  241. (Jenkins reading slide)
    "These companies" - the people producing these piano players pianos grammophones -
  242. "take my property and put it on their records.
  243. That disk as it stands, without the composition of an American composer like me on it,
  244. is not worth a penny.
  245. Put the composition of an American composer on it and it is worth $1.50."
  246. Things were cheaper, back then.
  247. "What makes the difference? The stuff that we write."
  248. You should have to pay us for making these things, right?
  249. We should change the law to reflect that fact.
  250. Now, the nascent recording industry, the people who were making these new technologies, disagreed.
  251. First of all, they denied that there was any theft
  252. (Comic: Congress hearing with two quotations read just afterwards by Jenkins)
    going on, and they rejected the notion of absolute property rights.
  253. They argued that copyright was a creature of statute, already reflecting in carefully balanced strucs (?) like Congress (?)
  254. So, here is Philip Mauro of the American Graphophone Company Association (reads from comic:)
  255. "All talk about "dishonesty" and "theft" in this connection, from however high a source, is the merest claptrap, for there exists no property in ideas, musical, literary, or artistic, except as defined by statute."
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    Second, they did not think that copyright holders should automatically reap the benefits
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    of an entirely new market that didn't exist before,
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    that had been created by technological innovation, the innovation of the companies that they represented.
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    So the piano roll industry representative pointed out
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    that new tech - new recording were not doing any harm to composers.
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    "It is therefore perfectly demonstrable that the introduction of automatic music players
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    has not deprived the composer of anything he had before their introduction"
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    The composers were still being paid for sheet music, right?
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    They are in the status quo, they are the same as before.
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    Why should we have to pay them for an entirely new market that we came up with?
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    And here is a quote that's not on there. This is Philip Mauro again, from the Graphophone Association -
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    ... very awkward back then:
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    "The composers and publishers have not contributed in the slightest degree to this change.
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    Yet the publisher does not scruple to demand radical change of legislation
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    in order to give him the entire monopoly of the benefits resulting from these changed conditions,
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    and has the effrontery to apply vituperative epithets to those who venture to oppose his scheme of greed." [laughter]
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    Good, ha? So, yes, in this case, the recording industry was siding with new technologies
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    and the freedom to copy, and against copyright extension.
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    So, what's fascinating, besides that fact, about these debates,
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    is the depth of discussion about how to allocate the new surplus, the new benefits
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    that are created by new technologies.
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    In this case, before these new technologies,
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    if you want to hear a song, you had to sing it or you had to play it, right?
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    You didn't intermediary - I mean, it's hard to imagine now.
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    But that's how, would you like to hear that song now? (?)
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    Well, do you have an orchestra? Tey can play it for you. [laughter]
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    Now, with these, you could actually listen to it without a human intermediary, and that's pretty neat.
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    And so these discussions actually talked about policy, new revenues that ought to automatically flow
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    to the copyright holders or to the technologists.
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    Right there (?) there was a policy debate that took into account the dangers of monopoly,
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    the benefits of technological progress, the public interest,
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    and the advancement of knowledge and culture.
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    And ultimately, Congress compromised.
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    It issued a compulsory licensing that once a composer allowed a song to be recorded,
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    anyone could record it and make one of these piano rolls or one of these discs,
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    as long as they paid a standard flat fee: at the time, two cents.
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    How did we present this compromise in the comic book form?
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    (Comic: [can't read])
    We wrote a little ditty. [inaudible: "buzz buzz buzz Boyle"?] 22:30
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    We are a little silly sometime in the comic.
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    We're sort of very - one of my students said:
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    "You're puns remind me of the kind of puns my uncle makes."
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    And I was like, "Your uncle must be a very, very funny man" [laughter]
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    I don't think he intended it as a compliment but I took it as one.
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    So: first we talked about remix and borrowing, and now technology seems - (?)
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    Technologies are unruly - we are bad at predicting their effect -
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    and they change the pattern of costs and benefits.
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    And when this happens, the incumbents tend to try to grab the full scope of the new surpluses,
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    or the new benefits, but externalize the costs.
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    Now, if I were advising a music clan, I may very well take that position: it would benefit my clan.
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    But it's not the only position.
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    And comparing some of the current debates going on,
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    as we speak about new intellectual property legislation,
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    to the debates in 1909, it seems as though we might have been more sophisticated back then.
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    Third theme. We've done remix, we've done technologies, and now we're on to -
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    Dollar! The most exciting part. I can really race, you know, in a tree, like you put the slowest guy (?) 23:38
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    Here's the wall, it is actually pretty cool (?) 23:39
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    (Slide: text read by Jenkins)
    So: "Our generation has a different relationship to musical culture than any other in history."
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    When did intellectual property loss start getting involved in this whole scheme,
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    and regulating music?
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    Music has not always been subject to copyright protection,
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    nor have there always been copyright laws
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    and the kind of copyright protection we are accustomed today
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    has only regulated music for a tiny, tiny sliver of its history.
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    So now, after the printing press was developed in around Renaissance,
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    states did grant -
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    (comic: score + texts: "Wait, this music we're in is patented!" "Not the music. Printing musical scores was hard in the 16th century. Petrucci had an intricate but accurate way to do it. He asked for a 20 year monopoly over all musical print in Venice as a reward.")
    - look how cool that is: it's early printed music from the early 1500's -
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    - they did grant certain printing privileges.
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    So, the Italian music publisher Petrucci, who developed an intricate,
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    laborious and innovative way of printing music,
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    actually got an exclusive right for 20 years of all musical printing in Venice.
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    [inaudible] that's another one of Boyle's jokes.
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    But these printing rights went to the publishers, ok?
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    Not to the composers, not to the authors.
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    (Slide: Statute of Queen Anne)
    It was in 1710 - those of you who are taking copyright know -
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    that the first copyright law, the Statute of Anne in Great Britain actually gave the rights - OK -
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    over their creations.
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    But this new law was not applied to music until 19 - I mean, 1777,
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    (Comic [copy texts?])
    when J.C. Bach, the English Bach -
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    he was the 18th, 18th child - busy guy - of J.S. Bach brought a lawsuit.
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    And the court found that musical compositions could actually be writings that were covered by the Statute.
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    But the Statute only covered the reprinting of music.
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    It did not cover the kinds of borrowing that we've been talking about,
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    that you saw in the Super Berio brothers' example.
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    You only needed permission to reprint entire musical works,
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    you did not need permission to borrow fragments of musical works
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    or even to perform musical compositions.
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    (Comic: JC Bach's tombstone center. Texts: "Didn't do him much good. He died penniless a few years later. His creditors tried to sell his body to medical schools to cover his debts" "Wow, I thought the RIAA was hardcore" "So what did these copyrights cover?" "Basically just reprinting. You could perform the music without permission, you could borrow fragmentsfrom the music, you just couldn't reprint the entire work.)
    More of our senseless sense of humor here.
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    I mean, amazing details when you research these people:
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    the poor guy died so poor that his creditors had to sell his body to medical schools to cover his debts.
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    Man. So even did - he won the case but didn't really do so well in the long run.
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    OK. That's sort of a very, very brief run through the history of [inaudible] copyright law, [26.19]
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    you know, start swimming in this, and this musical poor.
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    In the first place, in the US, there was a blip (?) too,
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    our first copyright act was passed in 1719,
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    did not explicitly cover musical compositions until 1831, and then, by analogy to books.
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    So, where are we now? A very different world.
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    (slide, read aloud:)
    "We have begun to regulate music at the atomic level."
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    So, as I described, music has a rich and long history of borrowing,
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    and I talked about classical and jazz, but of course, this is as true across genres and subgenres.
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    (Cartoon: no text)
    Take the blues, which draws from a rich commons of - oops
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    (Cartoon:"It's very difficult for me to talk about Chuck Berry because I've lifted every lick he ever played... This is the gentleman who started it all!" "Bye (?) Keith, if you tried to give Rock and Roll another name, you might call it Chuck Berry)
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    (Comic: "It's the DNA of the blues)
    of scales, core percussions, standards.
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    I think this is a particularly beautiful image.
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    This is our - this is our professor Kelly [inaudible "charactered in"?] with Robert Johnson
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    and the DNA of the blues slowing (?) out oftheir instruments.
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    (Comic: same Keith Richards' quote about Chuck Berry as before)
    Ehm - or take Rock 'N Roll.
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    Recognize these guys? One of them just wrote a book, one of them just had a birthday.
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    Keith Richards and John Lennon celebrating the contribution of Chuck Berry to Rock 'n Roll
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    and to their music in particular,
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    and Professor Aoki, our artist, just really [inaudible: "controlled artist"?] 27:33
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    I think these are particularly good renditions.
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    So, across genres, we have seen this long history of musical borrowing
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    and until relatively recently, for a variety of reasons,
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    the law as a general matter has not interfered with these practices.
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    But this changed with the practice of digital sampling.
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    Today, rap musicians, indeed, all musicians, are told to license the tiniest, shortest sample
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    when they make songs using fragments from prior ones,
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    even though music has relied on borrowing throughout its history.
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    What was considered creativity and now may be considered high art,
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    is now condemned as theft.
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    What happened?
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    (Several comic pages with no text)
    [inaudible] samples right here (28:17)
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    It started in 1991, with a case called Grand Upright
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    in which the rapper Biz Markie borrowed quite a bit, actually, from Gilbert O'Sullivan's "Alone Again", naturally.
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    And the judge in the case -
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    (Comic)
    - decided the case with the quote "Thou shalt not steal!"
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    has been an admonition followed since the dawn of civilization.
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    citing to the Bible - always got to cite your sources - [laughter]
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    Did the judge discuss any copyright law? No. [laughter]
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    Ten Commandments. Sampling was theft, pure and simple.
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    So, that was the first case, and the second case at a district circus in 2005,
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    was where a Federal Appeals Court famously announced: "Get a license or do not sample!"
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    So all samples should be subject to license, to payment and to getting permission.
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    In this case, the rap group NWA digitally sampled a 2-second, 3-note guitar riff.
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    So, here is the original guitar riff - George Clinton, but he doesn't own the rights,
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    a company called Bridgeport Music owns his rights,
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    and [inaudible]
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    [guitar riff excerpt: wobbling screech]
    [inaudible: "that's it, in a loop"?] 29:42
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    That's what they sampled.
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    Now try - try to hear it in the background of the NWA song called “A 100 Miles and Runnin’”
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    [song excerpt - words inaudible, accompaniment made of several samples]
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    Ehm, we cut out some of the obscenities [laughter]
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    you know, for the benefit of the audience, there is an unedited version.
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    NWA changed the pitch and the tempo
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    to the point in which it sounds kind of like a police siren in the background,
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    but it's not even recognizable as the original riff, as the original guitar riff.
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    They were sued.
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    And you may think that this kind of appropriation, this kind of taking is too trivial to care about.
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    And in fact, in copyright law, we have a doctrine called "De minimis",
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    which is Latin for "too trivial to care about", [laughter] you know.
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    So, in this case, you're like well, it was three notes, it was two seconds, right,
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    so if anything is going to be "de minimis", this sounds "de minimis" to me,
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    but the court said no.
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    How much would count as "de minimis" copying?
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    The court said: really, one note, maybe, based on the definition of the Copyright Act.
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    So, what's happening here?
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    This level of granularity - licensing 2 or 3 notes - is completely new, right:
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    if we look at this history, this is a new kind of regulation.
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    IP rights are being applied literally down to the atomic level of culture
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    and tiny fragments of music come loaded with demands for payment and copyright protection.
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    And so the result is a king of stratified culture.
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    You might say: "But people are sampling all the time".
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    They are. Musicians are still sampling and experimenting under the radar.
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    But the music being produced by the labels are following industry norms of licensing of samples.
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    And this actually changes the music that we get.
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    It changes the way the music sounds. [31:40]
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    So the sample-heavy wallops sounds (?) music from groups like Public Enemy in the 80's
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    sounds completely different than, for example, whatever his name is, Puff Daddies (?) 31-51
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    "I'll be missing you", which has the Police's "Every Breath You Take"
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    just leaping up on and on in the background, right?
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    There's one sample going on and on, not hundreds or thousands of samples,
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    creating this brilliant sonical sound (?)
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    And so the licensing practices actually are changing, they are changing the conditions of creativity,
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    and they are changing the way that music that we get, at least from the mainstream outlets,
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    And the question is, will this kind of licensing practices, will this kind of cases --
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    are they going to give us more culture, more art, more creativity?
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    After all, that's the purpose of copyright law,
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    to encourage and promote the production of art and creativity.
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    I don't think so, if we look at this history, which has blues, rock, soul,
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    any of these genres have developed the same way as they did under this kind of legal regime?
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    Probably not.
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    (Get a license or do not solo)
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    (Unlike prior generations, our contemporaries' music may be legally off limits for us to build on, absent permission or payment)
    So, in the last section of this talk, first theme,
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    we have these cases that are regulating music down at the atomic level.
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    That's one unique feature of our current copyright scheme.
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    The other is that copyright will last a long, long time.
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    To quote Professor Boyle, we are the first generation in history to deny our culture to ourselves.
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    What does that mean?
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    Until 1978, the copyright term in the US was 28 years, with the option to renew for another 28 years,
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    and most rights holders did not renew because they were of course not making money anymore (?) 33:25
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    So, what would be the point?
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    So after 28 years, works were falling into the public domain, you could freely do any of these things
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    without having to worry about it as the works were no longer subject to copyright protection (33:35)
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    Now, the copyright term is the life of the author plus 70 years
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    or in the case of corporate works, works owned, you know, by Disney, by labels, 95 years from publication.
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    So that's a long time. If people in this room were, say, 30, and you lived to, say, 90,
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    if you write something right now, 130 years from now,
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    that's when your work is going to go in the public domain.
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    That's very different from 28 years.
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    As a result, music published since 1923 is presumptively off-limits,
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    and if you just think about the law in 1978, under the law then,
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    most music would go in the public domain after 28 years.
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    And so, works from the early 80's would be free again.
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    Even if the term was renewed, works from 1953 forward would be in the public domain.
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    So, copyright term is much longer than it used to be
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    and perhaps even more interestingly, these terms have been retrospectively applied.
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    (Van marked © stops in graveyard. Big bloke says "He needs more copyright" "Get out the paddles". Applies reanimation paddles to a composer's tomb. Attendant 1: "Still, no response." Attendant 2: "OK, let's give him another 70 years". Bloke with paddles: "yeah yeah".Dead composer: "Don't they know the difference between composing and decomposing?")
    not just prospectively,
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    to new works that are being created, but to works that are already out there, already created,
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    in many cases, applying to dead musicians.
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    How did we present that in our comic?
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    This is our adventures - you know, we know the stuff, we research the stuff [inaudible] work:
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    "Can we come up with a funny way to present it visually?"
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    I think "Don't they know the difference between composing and decomposing" is actually -
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    that's Boyle again: I do the nerdy research and then he comes up with these brilliant bulls
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    but I particularly like that one.
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    So, two changes: regulating music at the atomic level, copyright term lasts a long, long time
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    (Comic: Hand holding egg: "Traditionally we had a thin layer of intellectual property protection surrounding a large and rich public domain." "It didn't cove very much, and it didn't cover it for very long." Hand crushes egg: "Now the balance between what is and isn't protected has been upset, copyright law may no longer serve the interests of creators.")
    - this is from our previous comic book, colorized -
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    perhaps upsetting the careful balance - we saw the balance invoked in the 1909 debates
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    that was built into copyright law, between control of works on the one hand,
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    and freedom to use those works on the other.
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    So, if we look around this audience, absent is a conspicuous choice:
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    those of you who write music, putting it under a Creative Commons license, for example,
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    no piece of culture produced by anyone in this room
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    is going to be part of the culture on which you can build - logical matter (?) 35:51
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    That wasn't true for Brahms or for Beethoven,
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    and when you combine the longer copyright term and the increasingly strict licensing practices that I talked about,
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    you could say that this also wasn't true for Dizzy Gillespie or Robert Johnson,
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    the giants of jazz or blues or rock 'n roll.
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    And so we do live in very unique times in terms of the legal regime that regulates music.
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    Now, again, maybe this change is a good one,
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    maybe extremely long copyright terms and licensing practices will give s better music
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    than that created by all our forbearers, but I'll have to say I am doubtful about that. (36:24)