Thursday, January 15, 2009

Copyright, profit, and liturgical music

I'm reprinting this letter from the New Oxford Review, not because I agree with all its contents (in fact, he is wrong on several points) but because I'm glad to see these issues being discussed more openly and more broadly. The Catholic liturgical music world is dealing with a very serious copyright problem that is breeding broad resentment, even as it is unclear whether the US Bishops are even aware of the problem.

I grew up in the 1970s, and the music used then in the typical American parish (both hymns and parts of the Mass) is the music I learned. Since then, I've come to regard it with a high degree of annoyance, bordering on loathing. So I read Lucy E. Car­roll's article "Why the Music is so Bad" (Oct.) with interest.

As I began to pay more attention to liturgical music, I noticed something about the music often used in the liturgy today: It sounds mass-produced. One has an image of a roomful of semi-talented men, each with a keyboard and a stack of blank staff pages in front of him, spinning out songs like yarn from a jenny. The phrase "Hallmark music" comes to mind.

Pondering this led me to a concept that may just offer an indirect path to restoring the sacred quality of music used in the liturgy. It has to do with a simple mechanism that the music publishers use to make money: copyright. If we, the Church, want to lift ourselves out of the musical quagmire we have made for ourselves, we must start by eschewing copyrighted music for liturgical use.

The few people I've mentioned this to, when I first propose the idea, mistakenly think I'm suggesting that the Church is somehow in violation of copyright law by playing copyrighted music. They answer by pointing out to me that they get permission for the performances, etc. Let me assure you: That's not my point. I won't get into the history of copyright law and the various effects copyright has had on publishing, both good and bad, but the fundamental fact of copyright in America today is this: In order to make a copy of a copyrighted musical work, whether that copy be of an ephemeral type, such as a public performance, or a more material type, such as a lyric sheet to pass out to parishioners, one must have the permission of the owner of the copyright.

When it comes to liturgical music, this is an inversion of proper subordination of the secular to the sacred. There may once have been a time when certain sacred music was banned from public performance in order to prevent the profanation of that sacred music. Such a ban may have even made sense. However, it should never go the other way. It should never be the case that the Church is under secular constraints and encumbrances regarding liturgical activity.

This is true regarding both liturgical performances (reading, singing, etc.) and the practical aspects of bringing about the proper tools for participation (printing of missals for the congregation, music sheets for the choir, etc.). Music that is not completely free for performance, copying, and use of any kind by the Church should be regarded as simply unfit for liturgical use.

The one reason that good liturgical music cannot come out of the modern music-publishing industry is that modern liturgical publishing (not just for music, but all aspects of it) is driven by profit. That's why all newly produced so-called liturgical music is copyrighted.

Note that my proposal has nothing directly to do with the quality of music itself. Nonetheless, it seems nearly certain that if bishops were to begin enjoining their dioceses to use only music in the public domain for liturgical purposes, the quality of music used in the Mass, both in sacredness and beauty, would increase tenfold almost instantaneously.

First, there is no question that as an empirical matter, the writer is exactly correct that eschewing copyrighted material for public domain material is likely to raise the quality of music in parishes. It means jettisoning the standard fare for chant and renaissance polyphony and older material in general. This is not a hard and fast rule: there is plenty of bad public domain material and plenty of great copyrighted material. In general, however, his observation has the ring of truth.

Second, it is always tempting to use the word "profit" as a swear word, as if it taints everything it touches, but let us be clear that profit only means revenue in excess of costs. It is a survival tool for all commercial endeavors. You can't live on losses. A world without profit would sink into poverty. So this writer is really not quite on the money is condemning the existence of profit as such. He is also wrong to believe that copyright and profit are bound up with each other. People will hold on to copyright even in the face of relentless losses, while public domain materials can yield very high profits (all classic literature is public domain, and it all sells at a profit).

Third, I too am favorable to the public domain model of music distribution, but there are other models including Creative Commons that require attribution and can be just as effective in promoting work. Further, there is nothing per se wrong with copyright liturgical music that isn't wrong with any copyright music. It is really a different argument that concerns many technical issues concerning scarcities and intellectual property and other matters that need not concern this discussion.

Fourth, and this is the most important point, the really big problem isn't the copyright in the music as such. Composers and publishers can use it or not. The very serious problem that gets into a major moral issue concerns copyright to the texts of the liturgy. This is what is egregious, in my own view. This is what allows liturgical commissions to charge royalties for publication of the Mass texts, and will soon allow major capitalistic publishers to loot Catholic parishioners for the right to print and distribute the Psalms, for example. This is a major problem. The word simony comes to mind (see G.E.M. Anscombe's "Faith in a Hard Ground" [Imprint Academic 2008]).

Again: it's not the music so much as the texts. The texts are what must be untethered from the laws of the nation state. Here, the letter writer is exactly right: "It should never be the case that the Church is under secular constraints and encumbrances regarding liturgical activity."