Friday, August 01, 2008

ICEL, Copyright, and a Creative Commons Future

Most of the focus on the translated Mass texts of the future has concerned language issues. But regardless of what is finally chosen and printed, a very serious issue has not been part of public discussion: namely, the rights of people to print and distributed these texts online and in new musical settings.

To the naïve among us, this probably doesn’t sound like an issue at all. These are the texts of the Mass that belong to all. Part of the Church’s evangelistic mission is to promote and distribute the theological import of them, and to inspire creativity in their liturgical presentation. It’s one thing to claim exclusive rights over presentation, art work, or commentary. But the required texts themselves? Surely they are the property of all.

The International Commission on English in the Liturgy doesn’t see it this way. Here is its copyright policy. In part this is an unintended fallout from vernacularization. The Latin texts are age old and gift to the entire world. But by authorizing vernacular translations, the texts of Mass themselves become bound up with national copyright laws in which the state collaborates with private producers to create and protect publishing monopolies.

By way of background, these kinds of copyright didn’t formally exist in the English speaking world until Elizabeth used them for purposes of securing political and religious loyalty toward the Crown and against those musicians or clergy or publishers who might have loyalties to the Vatican. These actions set a new precedent in the intermingling of church and state. Producers awarded such exclusive privileges appreciated the system but those who were not merely found themselves ensnared with the law. The copyright system, when used in this way, became an intrusion on the freedom of conscience and speech as well as religious liberty in general.

Nowadays, few know of this background. But everyone in Catholic liturgical publishing is aware of ICEL’s policies, which can be summarized in the following statement. “Any publication produced for sale which contains ICEL translations is subject to a royalty or flat fee.” Now, the fees may not seem to be high but small margins of this sort of publishing tax can make the difference in whether or not to go ahead with publishing. This is especially true with today’s astonishingly tight financial margins.

Now, there are conditions under which ICEL does not charge. This is for what is called a “one time use” by an institution or congregation. Examples would be “convention program booklets, jubilee Masses, ordinations, baptisms, first communions, confirmations, funerals, weddings, etc.” One time use means, presumably, in some way that the program cannot be reused, to use a literal rendering. But what if you post it online for, for example, the parish to see and download? Is that one-time use or more? It is hard to say.

The incredible fact is that ICEL does not anywhere in its policies explicitly account for digital posting or rendering of its texts. But we do know that last year, a British blog called “Hermeneutic of Continuity” posted the proposed translation. Here is the message he was sent by ICEL:

It has come to our attention that the proposed translation (Gray Book) of the Order of Mass circulated in January 2006 by the International Commission on English in the Liturgy has been included on your blogspot (the-hermeneutic-of This translation has been produced without the Commission's permission and in violation of the ICEL copyright. We ask therefore that the text be removed immediately from the site.

This case set a precedent and scared the wits out of bloggers the world over, who were terrified even to quote the new texts for fear of getting in trouble. Now, most Catholics who would otherwise publish these texts have good hearts. They want to get the word out and discuss them. But ICEL has said no.

What about when the texts are finalized? The presumption is that the policy will hold. The copyright policy will be the same, and the ambiguity concerning online posting will continue. This is a serious issue and a major problem that needs to be addressed, and soon.

By the way, the ambiguity is an issue not only for those who would give away their music, for example. What if someone wants a bound version of this music? These days it is as easy as provided a click through to permit people to purchase a bound volume printed on demand. Are we supposed to believe that only this action would cause ICEL to sit up and take notice, slapping around the individual or institution and fining them for royalties? It is not clear, but you can see how a resolution of the problem of non-commercial distribution is not enough. No clean line exists any longer between commercial and non-commercial.

The blogger who was harassed complied with ICEL’s demand but wrote: “I know that many good priests and lay people share my concern that the enforcement of copyright by ICEL over the past decades has not served the Church well. The restriction of publishing rights to one or two publishers has given rise to a monopoly with the result that only poorly produced books are available for priests to use in their parishes. …There are many Catholics who would be willing to finance the production of good quality, beautifully produced Missals were it only possible to do so without falling foul of copyright restrictions.”

[Someone else attempted to provide a substitute link to the texts, and here is the thanks he received. And yet, the crackdown hasn't worked.]

The blogger above is speaking of the English case but it is also true in the United States. Only a few firms seem to be able to afford to become liturgical publishers. And those that can are the source of many of the problems that the new translations are designed to overcome, namely liturgical deviations from the history and practice of the Roman Rite. In other words, if only these publishers are able to overcome the barriers to entry in the market, we are going to get new texts in the same old musical package that has proven to be much of a change. The attempt to bring about change will be foiled and solely because of a copyright policy.

Online digital publishing and printing has led to fantastic innovations in copyright policy as well, simply because the old models no longer work in a digital world. Creative Commons offers many opportunities for retaining a proprietary relationship with texts (attribution) while still permitting a generous use, even when it involves a commercial relationship, as the blog Cantemus Domino points out. The Catholic faithful have a very strong interest in making sure that ICEL adopts some new policy in this regard.

Will this mean less money for ICEL? Certainly. I’m sorry about that. But right now, its “royalties” are coming from poor parishes that cannot afford them—for it is they (their parishioners) who ultimately pay the price for them. There has been speculation that ICEL will shut down after this task is completed. That is all the more reason to stop the flow of money from the pockets of average Catholics into the coffers of these extra-ecclesiastical outfits and permit fair and open rivalry among all those who want to contribute to the Church’s liturgical life. For the good of the Church and the faith, something must change and now, before it is too late.

Actually, it seems to me that if ICEL does not voluntarily give up its temporal power, the Vatican has an interest in acting here to insist that the text of the Mass not be subject to a tax.

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