Theft! A History of Music
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0:00 - 0:03[Bell]
[Announcer] This is Duke University. -
0:06 - 0:10(The Center for the Study of the Public Domain presents: "Theft! A History of Music"
17 November 2010 - Duke Law) -
0:10 - 0:14[James Boyle] Welcome to this lecture put on by the Center for the Study of the Public Domain.
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0:14 - 0:20We bring - as part of our Center, we bring some of the leading figures in intellectual property
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0:20 - 0:23to come and speak here and today, the same is true,
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0:23 - 0:25but in this case we are introducing one of own:
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0:25 - 0:29Jennifer Jenkins is the director of the Center for the Study of the Public Domain.
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0:29 - 0:33She is a lecturing fellow, a senior lecturing fellow at the Law School,
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0:33 - 0:36teaching classes in Intellectual Property, the Public Domain and Free Speech,
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0:36 - 0:37and in music's copyright.
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0:37 - 0:40She's also the author of a number of things:
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0:40 - 0:45a comic book, which she co-authored with me and another one that she's going to talk about today,
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0:45 - 0:52and an article - a very prescient article - on the American system of protecting, or in this case,
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0:52 - 0:56not protecting fashion designs in intellectual property.
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0:56 - 1:02Jennifer is a frequently quoted academic in the media.
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1:02 - 1:05She has recently appeared in the New York Times, Newsweek, and on NPR.
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1:05 - 1:13And today, she's going to be talking to us about her research project on the history of music. Jennifer.
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1:13 - 1:22[Applause]
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1:24 - 1:28[Jennifer Jenkins] Hem... so.
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1:28 - 1:35Why did Plato argue that remixing music should be banned by the state?
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1:36 - 1:40Why did the Holy Roman Empire encourage the use of musical notation?
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1:41 - 1:48What threats were jazz and rock 'n roll supposed to present to society in mainstream culture?
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1:48 - 1:54Would the development of genres like jazz and soul even be possible under today's legal regimes?
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1:54 - 1:59These are some of the topics I'm going to talk about today, but with a twist:
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1:59 - 2:04I'm going to describe to you a research project
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2:04 - 2:07that Professor Boyle and I have been working on for about four years.
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2:07 - 2:11A project that focuses on the history of musical borrowing,
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2:11 - 2:20an over 2000 year exploration of the way that norms, aesthetics, law, politics, technology, economics
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2:20 - 2:25have influenced the conditions of creativity in music
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2:25 - 2:30and tried to limit the mutability of musical forms.
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2:31 - 2:35The project has taken us in some interesting directions.
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2:35 - 2:39For example, in 2006, we co-authored with professor Anthony Kelly
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2:39 - 2:45who is in this room, a course composed of half law students, half graduate level composers
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2:45 - 2:51that examined the way that musicians, on the one hand, and copyright law, on the other hand,
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2:51 - 2:53view different types of musical borrowing.
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2:53 - 2:59But the component of the project that I'm going to talk about today is a little bit different.
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3:00 - 3:06So, as anyone of our students' generation knows, we are currently in the midst of the musical wars.
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3:06 - 3:09On the one side, you hear about a whole generation of law-breakers,
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3:09 - 3:12pirating and remixing music without authorization,
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3:12 - 3:14completely indifferent to authors' needs.
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3:14 - 3:17On the other hand, you hear about record companies
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3:17 - 3:20resorting to the law to prop up an obsolete business model,
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3:20 - 3:26while trying to criminalize new forms of creativity and access enabled by technology.
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3:26 - 3:33And what our research showed us is that both of these accounts are both inaccurate and a-historical,
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3:33 - 3:37and that the history of music that I'm going to talk about,
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3:37 - 3:41can actually teach us a lot about today's debates.
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3:42 - 3:47So we wondered, how should we present all of these findings to the public?
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3:47 - 3:52So, one of the goals of our Center is - and of the Law School as a whole - is translation:
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3:52 - 3:57taking abstruse legal or academic findings and research,
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3:57 - 4:02and making those findings available and accessible to a wider audience.
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4:02 - 4:10So, the form that we chose for translation in this instance is one that we used successfully in the past
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4:10 - 4:14to explain Fair Use and copyright law to documentary film makers, namely -
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4:16 - 4:17a comic book!
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4:18 - 4:23That's - he's very generous, by the way - that's me, that's Professor Boyle flying in his -
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4:23 - 4:27actually this suit looks very much like the one he's wearing here, [laughter] that's amazing!
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4:27 - 4:37That's actually Professor Kelly and these are all the warrior zombies. [laughter]
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4:37 - 4:41So, the comic book is called "Theft, A History Of Music".
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4:41 - 4:47It's being co-authored by Professor Boyle from the Law School, by me and by professor Keith Aoki
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4:47 - 4:51who works at the University of California at Davis,
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4:51 - 4:55and while I'm going to tell you a little bit about our findings on musical borrowing,
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4:55 - 5:01I'm also going to tell you about the adventures, frustrations, delights,
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5:01 - 5:05of trying to present 2000 years of history in the form of a comic book.
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5:11 - 5:17(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. -
5:17 - 5:22There is something different about music.
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5:22 - 5:25As we did our research, one of the things that struck us most
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5:25 - 5:30was that music arouses very strong fears and very strong feelings
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5:30 - 5:37that lead to persistent, repeated attempts throughout history to regulate and control music,
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5:37 - 5:40whether legally, aesthetically or culturally.
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5:42 - 5:45This is especially true when it comes to remix.
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5:45 - 5:47Throughout history, there has been a persistent urge
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5:47 - 5:52to police the boundaries of musical forms and genres.
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5:52 - 5:56So, to take one example, here is Plato, as promised,
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5:56 - 6:02inveighing against the dangers of musical music over 2000 years ago. In Plato's words:
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6:02 - 6:06"This is the point to which, above all, the attention of our rulers should be directed:
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6:06 - 6:12that music, and gymnastics,be preserved in their original form, and no innovation made.
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6:12 - 6:16Any musical innovation is full of danger to the whole state
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6:16 - 6:19and ought to be prohibited."
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6:21 - 6:29So, Plato's arguing that musical innovation should be banned by the state.
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6:29 - 6:33Now, the mixing of ancient musical modes, such as the Dorian, Phrygian, Lydian etc.,
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6:33 - 6:40is obviously not the same as ...... to known mashing ups, radio head and jazzy (Jaycee?) radio head, (6:38)
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6:40 - 6:42or DJ Earworm mashing up the year's greatest pop hits,
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6:42 - 6:46but it's still fascinating to find that over 2000 years ago,
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6:46 - 6:50people were still arguing about banning a form of mash-up.
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6:52 - 6:55So, why would that be?
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6:55 - 7:00(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 -
7:00 - 7:04of the order of the cosmos, as the Greeks did,
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7:04 - 7:09or as a mode of communication that can jump the firewall of the brain
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7:09 - 7:14and communicate directly to the emotions,
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7:14 - 7:19then of course, you would worry about remix, because the results of the wrong remix -
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7:19 - 7:23(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] -
7:23 - 7:28Star-spangled Banner not being well received by the ancient Greeks.
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7:28 - 7:38So now, the Platonist view of music may seem outmoded - pun - so to speak.
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7:38 - 7:40Most of us aren't Platonists anymore.
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7:40 - 7:46But the belief in music's subversive power, about the danger of crossing musical boundaries,
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7:46 - 7:48is an enduring one.
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7:48 - 7:52So, these boundaries might be religious as with contrafactum (?)
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7:52 - 7:55and sacred-secular borrowing in the Middle Ages,
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7:55 - 8:00or cultural, or even racial
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8:00 - 8:04(Etude Music Magazine: "Jazz Problem - Opinions of Prominent Public Men and Musicians" August 1924)
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8:04 - 8:09So, this is the cover of the 1924 Etude Magazine that was brought to my attention,
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8:09 - 8:13actually given to us by Professor Anthony Kelly here, from the Music Department,
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8:13 - 8:16featuring the "Opinions of Prominent Public Men"
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8:16 - 8:19- there were actually women featured in there, but the cover says "Men" -
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8:19 - 8:23"and musicians on the Jazz problem".
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8:24 - 8:26What's the problem?
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8:27 - 8:30Here is a quote that I'm going to read from one composer,
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8:30 - 8:36with rather racist concerns about stylistic mingling. He said, just from this issue:
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8:36 - 8:41"Jazz is to real music what the caricature is to the portrait.
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8:41 - 8:44Jazz originated from the dance rhythms of the Negro.
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8:44 - 8:49It was at least interesting as a self-expression of a primitive race.
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8:49 - 8:53When jazz was adopted by the highly civilized white race,
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8:53 - 8:57it tended to degenerate it towards primitivity."
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8:57 - 9:03So here the boundaries that are being policed are as much racial as they are musical.
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9:03 - 9:06And this theme continued, whether it was composers such as this one,
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9:06 - 9:10worrying about the corrupting powers of jazz on white music in the 1920's,
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9:10 - 9:14or a few decades later, the segreationists in the American South,
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9:14 - 9:20that wanted rock 'n roll banned, because they saw it as a subversive crossing of lines
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9:20 - 9:22by Black R and P (?) music (9:21)
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9:22 - 9:25that might corrupt, among other things, white womanhood
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9:25 - 9:31and fill their heads with pounding rhythms and an attraction for African American performers.
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9:31 - 9:35(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 - -
9:35 - 9:38from Isa Carter, who was George Wallace's speech writer.
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9:41 - 9:47In other words, the segregationists thought that this was a form a musical miscegenation
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9:47 - 9:50that would lead to actual miscegenation.
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9:50 - 9:55Musical lines were race lines, and crossing them was dangerous.
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9:55 - 10:01(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. -
10:01 - 10:04'Rock and Roll inflames and excites the youth like jungle tom-toms.'
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10:04 - 10:12So, as you can see, Plato has had many strange intellectual companions over the years.
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10:14 - 10:17So, another thing we want this comic book to show
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10:17 - 10:24is the way that policies lines between the musicals runs as without actually seen as having a vital cultural role (??? 10:23)
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10:24 - 10:29Now, related to remix is the phenomenon of musical borrowing.
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10:29 - 10:35So these days, certain forms of borrowing - certain forms of music
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10:35 - 10:36that relied on "borrowing" in quotations are seen as high culture.
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10:36 - 10:39Take classical music.
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10:39 - 10:45Here is Brahms, whose First Symphony ..... (?) so many similatities to Beethoven's works
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10:45 - 10:50that the conductor Hans von Bülow called it Beethoven's Tenth [laughter]
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10:50 - 10:51much to Brams's annoyance.
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10:51 - 10:55There is - there are many translations of that particular quote and, you know
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10:55 - 10:58I had to chose this one, but I wasn't able to find the definitive translation.
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10:58 - 11:01But you get the gist: he didn't like it.
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11:01 - 11:05And of course, this is only one of thousands of examples,
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11:05 - 11:10because many forms of borrowing were accepted as fundamental compositional techniques
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11:10 - 11:14during the various eras of classical music.
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11:14 - 11:21There are actually distinct types of borrowing, each viewed as legitimate in its own way.
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11:21 - 11:26So, how are we going to present this musical research in comic book form?
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11:26 - 11:28We went with the classics
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11:28 - 11:35(comics page)
[laughter] Super Mario brothers, except for it is Super Berio Brothers. -
11:35 - 11:40Berio is a 20th century composer whose composition Sinfonia borrowed from everyone.
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11:40 - 11:45I'll just list a few: Mahler, Schoenberg, Debussy, Verdi, Brahms, Ravel, Stravinsky, Beethoven, Strauss, Bach -
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11:45 - 11:48just to name a few composers.
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11:48 - 11:50Ehm - Super Mario brothers.
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11:50 - 11:53(comics page with types of borrowing)
So in these slides, you see -
11:53 - 11:55- we tried, we tried to be faithful to the game -
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11:55 - 12:00we describe some of the different types of borrowing, such as modeling, for example.
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12:00 - 12:07So, John Williams theme from Star Wars is on Holst's composition "The Planets".
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12:07 - 12:16Or quotations: Tchaikovsky's "1812 Overture" conjures the Russian and French armies
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12:16 - 12:18by including their national anthems.
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12:18 - 12:24So, extensive borrowing has been a part of many genres.
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12:24 - 12:30Take Jazz - that's another example where borrowing and quotation were essential to composition.
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12:30 - 12:33(Comic: trumpet player saying "You can't steal a gift!")
Dizzy Gillespie - a pretty good rendition, I think. -
12:33 - 12:36Famous quote: "You can't steal a gift!"
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12:36 - 12:41So, of course now, we see many of these kinds of borrowing as high art,
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12:41 - 12:46not as something that is shady or reprehensible.
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12:46 - 12:50But years from now, will this also be the fate of today's hip hop art,
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12:50 - 12:52whose borrowing through sampling is often condemned...
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12:52 - 12:58(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? -
12:58 - 13:04[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..."
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13:04 - 13:10"You dare compare yourself to a classical rapper!!!!!???" [laughter].
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13:11 - 13:14We shall see if this is the future we have to look forward to.
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13:14 - 13:18So, the first theme today, is the struggle to control music,
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13:18 - 13:21it's a long one and has patterns that repeat.
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13:21 - 13:27And the struggle frequently has overt political or cultural overtones.
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13:27 - 13:30It is a battle over the shape of culture,
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13:30 - 13:36and persistent concerns about remixing music, all the way from Plato to the present,
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13:36 - 13:41have existed alongside a long and rich tradition of borrowing in music.
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13:41 - 13:47So, that's our first theme, leading on to my second theme: technology.
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13:47 - 13:52(Technologies are unruly, and we are bad at predicting their effects...)
Technologies are unruly. -
13:52 - 13:56So the history of music is bound up with technologies that enable its production,
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13:56 - 13:58its reproduction, its distribution.
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13:58 - 14:01And I mean technologies in the widest sense:
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14:01 - 14:07everything from musical notation to player pianos, grammophones, high quality printing presses,
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14:07 - 14:10all the way through to peer-to-peer file sharing.
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14:13 - 14:19So one conclusion that emerged from my historical research in this area is that
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14:19 - 14:27we, our society, our lawmakers, are remarkably bad at predicting the effects of new technologies.
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14:27 - 14:32So, one great example is the process of musical notation itself.
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14:32 - 14:37The ancient Greeks and Persians had musical notation of a sort and in fact,
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14:37 - 14:39(Greek MS entitled "Song A - P. Yale CtYBR inv. 4510)
some of the manuscripts are remaining: -
14:39 - 14:44this is an actual manuscript of early Greek notation,
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14:45 - 14:48though there is some debate as to whether we can actually read that notation
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14:48 - 14:50and figure out what the music sounded like,
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14:50 - 14:55(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. -
14:55 - 14:57But the skill of notation, after that, was lost in the West
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14:57 - 15:02and wasn't reinvented until sometime in the Ninth Century.
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15:03 - 15:05(A hand with musical staffs and Latin words under them)
So here is the Guidonian hand: -
15:05 - 15:10a Twelfth Century mnemonic device to help singers sight-sing from notation.
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15:11 - 15:13Why was notation reinvented?
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15:13 - 15:20The Holy Roman Empire played a prominent role in spreading and encouraging the use of notation.
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15:20 - 15:27Its goal was a simple one: uniformity and control over sacred Church music.
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15:27 - 15:32So, until the reinvention of notation to ensure a standard form of music,
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15:32 - 15:35they actually sent around a standard reference choir
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15:35 - 15:37to sing in each of the cathedrals of the Empire
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15:37 - 15:40to make sure that it was one Church, one Mass, one song.
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15:42 - 15:44Notation meant that they didn't have to do this anymore.
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15:44 - 15:49It meant that the Church dictates about music - only monophonic music, only the human voice,
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15:49 - 15:55no accompaniment, only the approved tunes and chants - could be imposed form afar,
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15:55 - 16:01bringing musical uniformity to the breadth of the Empire. Or so they thought.
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16:01 - 16:04(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. -
16:04 - 16:07and we do so and the doctor who taught us,
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16:07 - 16:11which is hurtling into space there - another one of our decisions in presenting it -
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16:11 - 16:16So, in fact, of course, notation did something very different as well.
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16:16 - 16:20It allowed composers to experiment in ways that they could never have done before,
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16:20 - 16:24particularly in polyphonic music, music with multiple melody lines.
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16:24 - 16:29It allowed the sharing and the borrowing of music by people who had never met face to face,
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16:29 - 16:32or ever heard the same live piece of music.
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16:32 - 16:39So notation, a technology intended to produce uniformity, to squelch experimentation and remix,
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16:39 - 16:42actually ended up enabling all of those things.
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16:43 - 16:49So, time and time again, our confident predictions about the effects of new technologies and regulation
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16:49 - 16:52on music turn out to be outdone by events.
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16:52 - 16:56And it's not clear that we're much better today in predicting the effects of technology
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16:56 - 17:00than we were in the Holy Roman Empire.
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17:00 - 17:05So, a slightly more recent example, from the early 1900's:
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17:05 - 17:12(Slide: read aloud by Jenkins:)
Now it seems (?) "When technologies change the patterns of costs and benefits, -
17:12 - 17:15incumbents turn to the state for recourse"
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17:15 - 17:20So in the late XIXth century, the disruptive technologies of the day were player pianos.
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17:20 - 17:22Has anyone ever seen...?
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17:22 - 17:26I always talk to my students about that as some people have heard of them, some people haven't.
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17:26 - 17:28It's a little mechanical piano roll,
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17:28 - 17:33and it actually makes the piano play the ragtime music or whatever it is that you're into.
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17:33 - 17:40So, at the time, copyright law only covered the printing and public performance of musical compositions.
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17:40 - 17:45It did not cover the mechanical reproduction from making a player piano roll
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17:45 - 17:51or a disc or cylinder for phonographs or grammophones.
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17:52 - 17:55(Comic: about player piano and Edison's invention of the phonograph)
Here's some of the techology that we are talking about. -
17:57 - 18:02So the composers and music publishers, when these new technologies came out,
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18:02 - 18:08went to Congress, claiming that these technologies were effectively stealing their property
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18:08 - 18:14and demanding that the law - the copyright law - should be changed to reflect that fact
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18:14 - 18:20and insure remuneration for every one of the piano rolls or discs that was produced.
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18:20 - 18:24So here is composer John Philip Sousa, who you may be familiar with:
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18:24 - 18:26His marches, which are played in marching bands,
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18:26 - 18:31at least I did - have you been unlucky enough to be subjected to that in high school ? -
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18:31 - 18:34(Comic)
So, here is John Philip Sousa. -
18:34 - 18:39(Jenkins reading slide)
"These companies" - the people producing these piano players pianos grammophones - -
18:39 - 18:42"take my property and put it on their records.
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18:42 - 18:47That disk as it stands, without the composition of an American composer like me on it,
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18:47 - 18:49is not worth a penny.
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18:51 - 18:55Put the composition of an American composer on it and it is worth $1.50."
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18:55 - 18:57Things were cheaper, back then.
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18:57 - 19:01"What makes the difference? The stuff that we write."
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19:01 - 19:03You should have to pay us for making these things, right?
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19:03 - 19:06We should change the law to reflect that fact.
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19:06 - 19:11Now, the nascent recording industry, the people who were making these new technologies, disagreed.
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19:12 - 19:16First of all, they denied that there was any theft
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19:16 - 19:18(Comic: Congress hearing with two quotations read just afterwards by Jenkins)
going on, and they rejected the notion of absolute property rights. -
19:18 - 19:26They argued that copyright was a creature of statute, already reflecting in carefully balanced strucs (?) like Congress (?)
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19:27 - 19:31So, here is Philip Mauro of the American Graphophone Company Association (reads from comic:)
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19:31 - 19:43"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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Not SyncedSecond, they did not think that copyright holders should automatically reap the benefits
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Not Syncedof an entirely new market that didn't exist before,
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Not Syncedthat had been created by technological innovation, the innovation of the companies that they represented.
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Not SyncedSo the piano roll industry representative pointed out
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Not Syncedthat new tech - new recording were not doing any harm to composers.
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Not Synced"It is therefore perfectly demonstrable that the introduction of automatic music players
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Not Syncedhas not deprived the composer of anything he had before their introduction"
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Not SyncedThe composers were still being paid for sheet music, right?
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Not SyncedThey are in the status quo, they are the same as before.
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Not SyncedWhy should we have to pay them for an entirely new market that we came up with?
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Not SyncedAnd here is a quote that's not on there. This is Philip Mauro again, from the Graphophone Association -
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Not Synced... very awkward back then:
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Not Synced"The composers and publishers have not contributed in the slightest degree to this change.
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Not SyncedYet the publisher does not scruple to demand radical change of legislation
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Not Syncedin order to give him the entire monopoly of the benefits resulting from these changed conditions,
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Not Syncedand has the effrontery to apply vituperative epithets to those who venture to oppose his scheme of greed." [laughter]
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Not SyncedGood, ha? So, yes, in this case, the recording industry was siding with new technologies
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Not Syncedand the freedom to copy, and against copyright extension.
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Not SyncedSo, what's fascinating, besides that fact, about these debates,
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Not Syncedis the depth of discussion about how to allocate the new surplus, the new benefits
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Not Syncedthat are created by new technologies.
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Not SyncedIn this case, before these new technologies,
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Not Syncedif you want to hear a song, you had to sing it or you had to play it, right?
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Not SyncedYou didn't intermediary - I mean, it's hard to imagine now.
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Not SyncedBut that's how, would you like to hear that song now? (?)
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Not SyncedWell, do you have an orchestra? Tey can play it for you. [laughter]
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Not SyncedNow, with these, you could actually listen to it without a human intermediary, and that's pretty neat.
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Not SyncedAnd so these discussions actually talked about policy, new revenues that ought to automatically flow
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Not Syncedto the copyright holders or to the technologists.
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Not SyncedRight there (?) there was a policy debate that took into account the dangers of monopoly,
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Not Syncedthe benefits of technological progress, the public interest,
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Not Syncedand the advancement of knowledge and culture.
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Not SyncedAnd ultimately, Congress compromised.
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Not SyncedIt issued a compulsory licensing that once a composer allowed a song to be recorded,
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Not Syncedanyone could record it and make one of these piano rolls or one of these discs,
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Not Syncedas long as they paid a standard flat fee: at the time, two cents.
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Not SyncedHow did we present this compromise in the comic book form?
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Not Synced(Comic: [can't read])
We wrote a little ditty. [inaudible: "buzz buzz buzz Boyle"?] 22:30 -
Not SyncedWe are a little silly sometime in the comic.
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Not SyncedWe're sort of very - one of my students said:
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Not Synced"You're puns remind me of the kind of puns my uncle makes."
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Not SyncedAnd I was like, "Your uncle must be a very, very funny man" [laughter]
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Not SyncedI don't think he intended it as a compliment but I took it as one.
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Not SyncedSo: first we talked about remix and borrowing, and now technology seems - (?)
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Not SyncedTechnologies are unruly - we are bad at predicting their effect -
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Not Syncedand they change the pattern of costs and benefits.
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Not SyncedAnd when this happens, the incumbents tend to try to grab the full scope of the new surpluses,
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Not Syncedor the new benefits, but externalize the costs.
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Not SyncedNow, if I were advising a music clan, I may very well take that position: it would benefit my clan.
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Not SyncedBut it's not the only position.
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Not SyncedAnd comparing some of the current debates going on,
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Not Syncedas we speak about new intellectual property legislation,
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Not Syncedto the debates in 1909, it seems as though we might have been more sophisticated back then.
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Not SyncedThird theme. We've done remix, we've done technologies, and now we're on to -
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Not SyncedDollar! 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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Not SyncedHere's the wall, it is actually pretty cool (?) 23:39
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Not Synced(Slide: text read by Jenkins)
So: "Our generation has a different relationship to musical culture than any other in history." -
Not SyncedWhen did intellectual property loss start getting involved in this whole scheme,
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Not Syncedand regulating music?
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Not SyncedMusic has not always been subject to copyright protection,
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Not Syncednor have there always been copyright laws
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Not Syncedand the kind of copyright protection we are accustomed today
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Not Syncedhas only regulated music for a tiny, tiny sliver of its history.
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Not SyncedSo now, after the printing press was developed in around Renaissance,
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Not Syncedstates did grant -
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Not Synced(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 - -
Not Synced- they did grant certain printing privileges.
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Not SyncedSo, the Italian music publisher Petrucci, who developed an intricate,
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Not Syncedlaborious and innovative way of printing music,
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Not Syncedactually got an exclusive right for 20 years of all musical printing in Venice.
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Not Synced[inaudible] that's another one of Boyle's jokes.
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Not SyncedBut these printing rights went to the publishers, ok?
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Not SyncedNot to the composers, not to the authors.
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Not Synced(Slide: Statute of Queen Anne)
It was in 1710 - those of you who are taking copyright know - -
Not Syncedthat the first copyright law, the Statute of Anne in Great Britain actually gave the rights - OK -
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Not Syncedover their creations.
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Not SyncedBut this new law was not applied to music until 19 - I mean, 1777,
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Not Synced(Comic [copy texts?])
when J.C. Bach, the English Bach - -
Not Syncedhe was the 18th, 18th child - busy guy - of J.S. Bach brought a lawsuit.
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Not SyncedAnd the court found that musical compositions could actually be writings that were covered by the Statute.
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Not SyncedBut the Statute only covered the reprinting of music.
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Not SyncedIt did not cover the kinds of borrowing that we've been talking about,
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Not Syncedthat you saw in the Super Berio brothers' example.
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Not SyncedYou only needed permission to reprint entire musical works,
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Not Syncedyou did not need permission to borrow fragments of musical works
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Not Syncedor even to perform musical compositions.
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Not Synced(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. -
Not SyncedI mean, amazing details when you research these people:
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Not Syncedthe poor guy died so poor that his creditors had to sell his body to medical schools to cover his debts.
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Not SyncedMan. So even did - he won the case but didn't really do so well in the long run.
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Not SyncedOK. That's sort of a very, very brief run through the history of [inaudible] copyright law, [26.19]
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Not Syncedyou know, start swimming in this, and this musical poor.
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Not SyncedIn the first place, in the US, there was a blip (?) too,
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Not Syncedour first copyright act was passed in 1719,
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Not Synceddid not explicitly cover musical compositions until 1831, and then, by analogy to books.
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Not SyncedSo, where are we now? A very different world.
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Not Synced(slide, read aloud:)
"We have begun to regulate music at the atomic level." -
Not SyncedSo, as I described, music has a rich and long history of borrowing,
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Not Syncedand I talked about classical and jazz, but of course, this is as true across genres and subgenres.
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Not Synced(Cartoon: no text)
Take the blues, which draws from a rich commons of - oops -
Not Synced(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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Not Synced(Comic: "It's the DNA of the blues)
of scales, core percussions, standards. -
Not SyncedI think this is a particularly beautiful image.
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Not SyncedThis is our - this is our professor Kelly [inaudible "charactered in"?] with Robert Johnson
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Not Syncedand the DNA of the blues slowing (?) out oftheir instruments.
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Not Synced(Comic: same Keith Richards' quote about Chuck Berry as before)
Ehm - or take Rock 'N Roll. -
Not SyncedRecognize these guys? One of them just wrote a book, one of them just had a birthday.
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Not SyncedKeith Richards and John Lennon celebrating the contribution of Chuck Berry to Rock 'n Roll
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Not Syncedand to their music in particular,
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Not Syncedand Professor Aoki, our artist, just really [inaudible: "controlled artist"?] 27:33
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Not SyncedI think these are particularly good renditions.
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Not SyncedSo, across genres, we have seen this long history of musical borrowing
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Not Syncedand until relatively recently, for a variety of reasons,
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Not Syncedthe law as a general matter has not interfered with these practices.
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Not SyncedBut this changed with the practice of digital sampling.
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Not SyncedToday, rap musicians, indeed, all musicians, are told to license the tiniest, shortest sample
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Not Syncedwhen they make songs using fragments from prior ones,
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Not Syncedeven though music has relied on borrowing throughout its history.
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Not SyncedWhat was considered creativity and now may be considered high art,
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Not Syncedis now condemned as theft.
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Not SyncedWhat happened?
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Not Synced(Several comic pages with no text)
[inaudible] samples right here (28:17) -
Not SyncedIt started in 1991, with a case called Grand Upright
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Not Syncedin which the rapper Biz Markie borrowed quite a bit, actually, from Gilbert O'Sullivan's "Alone Again", naturally.
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Not SyncedAnd the judge in the case -
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Not Synced(Comic)
- decided the case with the quote "Thou shalt not steal!" -
Not Syncedhas been an admonition followed since the dawn of civilization.
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Not Syncedciting to the Bible - always got to cite your sources - [laughter]
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Not SyncedDid the judge discuss any copyright law? No. [laughter]
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Not SyncedTen Commandments. Sampling was theft, pure and simple.
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Not SyncedSo, that was the first case, and the second case at a district circus in 2005,
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Not Syncedwas where a Federal Appeals Court famously announced: "Get a license or do not sample!"
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Not SyncedSo all samples should be subject to license, to payment and to getting permission.
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Not SyncedIn this case, the rap group NWA digitally sampled a 2-second, 3-note guitar riff.
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Not SyncedSo, here is the original guitar riff - George Clinton, but he doesn't own the rights,
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Not Synceda company called Bridgeport Music owns his rights,
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Not Syncedand [inaudible]
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Not Synced[guitar riff excerpt: wobbling screech]
[inaudible: "that's it, in a loop"?] 29:42 -
Not SyncedThat's what they sampled.
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Not SyncedNow try - try to hear it in the background of the NWA song called “A 100 Miles and Runnin’”
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Not Synced[song excerpt - words inaudible, accompaniment made of several samples]
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Not SyncedEhm, we cut out some of the obscenities [laughter]
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Not Syncedyou know, for the benefit of the audience, there is an unedited version.
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Not SyncedNWA changed the pitch and the tempo
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Not Syncedto the point in which it sounds kind of like a police siren in the background,
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Not Syncedbut it's not even recognizable as the original riff, as the original guitar riff.
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Not SyncedThey were sued.
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Not SyncedAnd you may think that this kind of appropriation, this kind of taking is too trivial to care about.
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Not SyncedAnd in fact, in copyright law, we have a doctrine called "De minimis",
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Not Syncedwhich is Latin for "too trivial to care about", [laughter] you know.
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Not SyncedSo, in this case, you're like well, it was three notes, it was two seconds, right,
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Not Syncedso if anything is going to be "de minimis", this sounds "de minimis" to me,
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Not Syncedbut the court said no.
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Not SyncedHow much would count as "de minimis" copying?
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Not SyncedThe court said: really, one note, maybe, based on the definition of the Copyright Act.
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Not SyncedSo, what's happening here?
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Not SyncedThis level of granularity - licensing 2 or 3 notes - is completely new, right:
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Not Syncedif we look at this history, this is a new kind of regulation.
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Not SyncedIP rights are being applied literally down to the atomic level of culture
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Not Syncedand tiny fragments of music come loaded with demands for payment and copyright protection.
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Not SyncedAnd so the result is a king of stratified culture.
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Not SyncedYou might say: "But people are sampling all the time".
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Not SyncedThey are. Musicians are still sampling and experimenting under the radar.
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Not SyncedBut the music being produced by the labels are following industry norms of licensing of samples.
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Not SyncedAnd this actually changes the music that we get.
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Not SyncedIt changes the way the music sounds. [31:40]
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Not SyncedSo the sample-heavy wallops sounds (?) music from groups like Public Enemy in the 80's
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Not Syncedsounds completely different than, for example, whatever his name is, Puff Daddies (?) 31-51
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Not Synced"I'll be missing you", which has the Police's "Every Breath You Take"
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Not Syncedjust leaping up on and on in the background, right?
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Not SyncedThere's one sample going on and on, not hundreds or thousands of samples,
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Not Syncedcreating this brilliant sonical sound (?)
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Not SyncedAnd so the licensing practices actually are changing, they are changing the conditions of creativity,
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Not Syncedand they are changing the way that music that we get, at least from the mainstream outlets,
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Not SyncedAnd the question is, will this kind of licensing practices, will this kind of cases --
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Not Syncedare they going to give us more culture, more art, more creativity?
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Not SyncedAfter all, that's the purpose of copyright law,
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Not Syncedto encourage and promote the production of art and creativity.
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Not SyncedI don't think so, if we look at this history, which has blues, rock, soul,
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Not Syncedany of these genres have developed the same way as they did under this kind of legal regime?
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Not SyncedProbably not.
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Not Synced(Get a license or do not solo)
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Not Synced(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, -
Not Syncedwe have these cases that are regulating music down at the atomic level.
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Not SyncedThat's one unique feature of our current copyright scheme.
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Not SyncedThe other is that copyright will last a long, long time.
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Not SyncedTo quote Professor Boyle, we are the first generation in history to deny our culture to ourselves.
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Not SyncedWhat does that mean?
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Not SyncedUntil 1978, the copyright term in the US was 28 years, with the option to renew for another 28 years,
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Not Syncedand most rights holders did not renew because they were of course not making money anymore (?) 33:25
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Not SyncedSo, what would be the point?
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Not SyncedSo after 28 years, works were falling into the public domain, you could freely do any of these things
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Not Syncedwithout having to worry about it as the works were no longer subject to copyright protection (33:35)
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Not SyncedNow, the copyright term is the life of the author plus 70 years
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Not Syncedor in the case of corporate works, works owned, you know, by Disney, by labels, 95 years from publication.
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Not SyncedSo that's a long time. If people in this room were, say, 30, and you lived to, say, 90,
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Not Syncedif you write something right now, 130 years from now,
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Not Syncedthat's when your work is going to go in the public domain.
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Not SyncedThat's very different from 28 years.
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Not SyncedAs a result, music published since 1923 is presumptively off-limits,
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Not Syncedand if you just think about the law in 1978, under the law then,
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Not Syncedmost music would go in the public domain after 28 years.
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Not SyncedAnd so, works from the early 80's would be free again.
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Not SyncedEven if the term was renewed, works from 1953 forward would be in the public domain.
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Not SyncedSo, copyright term is much longer than it used to be
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Not Syncedand perhaps even more interestingly, these terms have been retrospectively applied.
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Not Synced(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, -
Not Syncedto new works that are being created, but to works that are already out there, already created,
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Not Syncedin many cases, applying to dead musicians.
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Not SyncedHow did we present that in our comic?
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Not SyncedThis is our adventures - you know, we know the stuff, we research the stuff [inaudible] work:
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Not Synced"Can we come up with a funny way to present it visually?"
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Not SyncedI think "Don't they know the difference between composing and decomposing" is actually -
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Not Syncedthat's Boyle again: I do the nerdy research and then he comes up with these brilliant bulls
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Not Syncedbut I particularly like that one.
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Not SyncedSo, two changes: regulating music at the atomic level, copyright term lasts a long, long time
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Not Synced(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 - -
Not Syncedperhaps upsetting the careful balance - we saw the balance invoked in the 1909 debates
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Not Syncedthat was built into copyright law, between control of works on the one hand,
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Not Syncedand freedom to use those works on the other.
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Not SyncedSo, if we look around this audience, absent is a conspicuous choice:
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Not Syncedthose of you who write music, putting it under a Creative Commons license, for example,
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Not Syncedno piece of culture produced by anyone in this room
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Not Syncedis going to be part of the culture on which you can build - logical matter (?) 35:51
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Not SyncedThat wasn't true for Brahms or for Beethoven,
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Not Syncedand when you combine the longer copyright term and the increasingly strict licensing practices that I talked about,
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Not Syncedyou could say that this also wasn't true for Dizzy Gillespie or Robert Johnson,
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Not Syncedthe giants of jazz or blues or rock 'n roll.
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Not SyncedAnd so we do live in very unique times in terms of the legal regime that regulates music.
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Not SyncedNow, again, maybe this change is a good one,
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Not Syncedmaybe extremely long copyright terms and licensing practices will give s better music
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Not Syncedthan that created by all our forbearers, but I'll have to say I am doubtful about that. (36:24)
- Title:
- Theft! A History of Music
- Description:
-
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.
- Video Language:
- English
- Team:
- Music Captioning
- Project:
- On and Around Music
- Duration:
- 58:59
Claude Almansi edited English subtitles for Theft! A History of Music | ||
Claude Almansi edited English subtitles for Theft! A History of Music | ||
Claude Almansi edited English subtitles for Theft! A History of Music | ||
Claude Almansi edited English subtitles for Theft! A History of Music | ||
Claude Almansi edited English subtitles for Theft! A History of Music | ||
Claude Almansi edited English subtitles for Theft! A History of Music | ||
Claude Almansi edited English subtitles for Theft! A History of Music | ||
Claude Almansi edited English subtitles for Theft! A History of Music |