Traditional Music and Copyright: The Issues

Abstract

"Copyright in the arts as we know it today is based on a narrowly-defined, text-based concept of the 'literary or artistic work' as it has developed since the enactment of the Statute of Anne in 1709, which has at its core particular philosophical premises relating to authorship, creativity, originality, individualism, and intellectual property; most of which received their elaboration during the Romantic Movement. This elaboration of the work-concept and the resultant premises of copyright are well suited to the processes of commodification within a capitalist system.

"However, traditional culture, and traditional music and song in particular, comes into conflict with this conceptual framework in two fundamental ways: a) In the everyday practice of these cultural expressions tunes or songs are conceived of as the consensus of practices, with the emphasis on process, variation, and individual contributions over time, alongside the recognition of the contribution of creative individuals in adding to a corpus of communally practiced and disseminated repertoire. b) The key to understanding transmission in traditional musical expression, the perpetuation of these forms at amateur and community level, is the concept of Community Economy, a system of reciprocal exchange which privileges participation, the 'doing of the doing,' and generosity of distribution; none of which conform readily to the concepts of Market Economy, private property, commodification, and copyright.

"As a result of this divergence at a conceptual and practical level, traditional cultures find themselves with a problem. Many musicians from traditional cultures are partaking of the fruits of a burgeoning music industry that considers traditional forms of music marketable commodities on the 'World Music' scene, thereby unknowingly working within two fundamentally contradictory, if not at least paradoxical worldviews. The hegemonic nature of the capitalist ethos, its inherent ability to predominate and penetrate at all levels of culture, and the natural attractions of a full-time career in the music industry for musicians who love what they do, combine to increasingly commodify the musical expressions of traditional culture, making them available for financial exploitation. If the advancing commodification of traditional culture is allowed to go unhindered, without adequate and sympathetic official protection for the originating non-market community system, then the transmission process itself, as a vital scene of community cohesion and humanising personal development, will itself be placed under threat.

"'In order to fairly assess the need for the intellectual property protection of folklore, the frame of reference from which we are accustomed to viewing the spectrum of legal traditions must be set askew' (Weiner 1987:57)."