Ay, There’s the Rub: When You Cannot (or Should Not) Copy Something Despite its Lack of Copyright Protection

Credit photo: author

Several decades ago, in my younger days, my wife and I spent a summer in England visiting the many historical sites of that great country. During that trip, we visited a number of cathedrals. I don’t remember them all, but Winchester was one for sure. I still have vivid memories of young students sprawled out on the floor of the cathedral taking rubbings from the brass effigies of knights and clergy inlaid in the stone floor. That was a popular pastime “back in the day” (and earlier going back to Victorian times) although today it is discouraged because of the obvious impact on the integrity of the originals from repeated rubbings. It can still be done, but normally from reproductions, such as those found at St. Martins-in-the-Fields in London, where reproductions of famous effigies from throughout England have been collected so tourists can take rubbings from them. You can also buy reproductions of the rubbings for a modest sum.

My mind flashed back to these brass tomb rubbings when I recently visited Gabriola Island, one of the southern Gulf Islands in the Salish Sea between Vancouver Island and the mainland of British Columbia. Gabriola is home to large numbers of petroglyphs (more than 70 in total), rock carvings executed by the native people of the area, the Snuneymuxw (pronounced Snoo-nai-mu), over many hundreds of years. While it is hard to date the carvings, most are believed to be several hundred years old, or older, although some may be of relatively recent vintage. They depict all manner of wildlife and anthropomorphic figures and are scattered around the island, some near the coast, others in auspicious rocky areas, most on private land.

Gabriola is also known for its unusual sandstone features. Over the centuries the soft sandstone has been eroded by the ocean to create waterside “galleries”, clearly visible at low tide. The most famous of these are the “Malaspina Galleries”, covered arcades that people can walk into. The galleries and the petroglyphs have been an attraction ever since the days of the first European explorers. The University of Washington has a photograph of an engraving dated 1792 made from a sketch drawn by Spanish explorer Jose Cardero showing European and native visitors viewing a petroglyph carved on the underside of one of the Gabriola gallery roofs.

Given the attraction of the petroglyphs, and in order to prevent damage to the originals, a few years ago a project was started to make casts of most of the glyphs and display the castings on the grounds of the local museum, laid out on the ground amongst the trees. As they soon became covered in the soft moss typical of the island, they took on the aura of the originals. People, especially student groups, were encouraged to visit the castings and the museum to learn the history of the Snuneymuxw people and as part of the educational experience, they were allowed—even encouraged—to take rubbings of the images displayed in the reproduced castings. The museum even supplied rubbing kits for a small fee.

That was then—a few years ago. Now the signs encouraging the making of rubbings have been (sort of) painted over and the rubbing kits are no longer for sale. The Gabriola Museum has posted a sign saying that after consultation with the Snuneymuxw Nation, the taking of rubbings from the castings is no longer permitted. Why the change? After all, these are “just” reproductions. And aren’t they public domain works? They are not protected by any form of copyright.

To answer this question, we need to look deeper at the origin and meaning of the glyphs, and also to understand the broader global context regarding the protection of indigenous cultural expression. As I discussed in a blog last October (Can Copyright Law Protect Indigenous Culture? If Not, What is the Answer?), a number of countries are grappling with how to adapt copyright laws to protect Indigenous Cultural Expression (ICE). One solution may be an international treaty which has been under negotiation at the World Intellectual Property Organization (WIPO) for a number of years, called the Treaty on Intellectual Property on Genetic Resources, Traditional Knowledge and Folklore, but this is a slow process that may ultimately not be productive. Another might be to establish a rights-management agency for indigenous culture, along the lines of what is being considered in Canada. This would allow users to gain consent and license the use of protected cultural expressions (images, designs, music, dances and so on) while at the same time protecting them and restricting their use, even if they are not subject to copyright. A key piece of the puzzle is the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) that has been endorsed by 144 countries, including the US and Canada. The Declaration, although not binding in domestic law in many countries (US and Canada are examples) gives indigenous peoples the right to maintain, control, protect and develop cultural heritage including literature, designs, visual and performing arts, and other aspects of traditional knowledge.

In line with the right to control and protect cultural artifacts, it may be that some are considered so sacred that they should not be reproduced at all. There are numerous petroglyph sites in the US (in Arizona, New Mexico, Nevada, Utah, Washington, Illinois, Michigan, Missouri, even Hawaii) and there is a major petroglyph site in eastern Canada, north of Toronto. At Petroglyphs Provincial Park all the glyphs are protected by a weatherproof building, and even photography of the images is not allowed. At the Petroglyphs National Monument in New Mexico, the National Parks Service has this advice for visitors; 

We encourage you to respect the beliefs of the descendants of those who carved the images on the rocks. The petroglyphs within the park are sacred to many people living in the area today. Out of respect and consideration of present day peoples, we currently do not post any images on our website or place any images in our publications that display the human form. We would encourage you not to use the images for commercial purposes.

As you can see, if even photography is often not allowed or is constrained, it is understandable that taking rubbings, even of reproductions, can cross the line of what is acceptable. There is obviously a balance somewhere between limiting access and reproduction for spiritual reasons, and promoting dissemination of the images for purposes of education and awareness.

It seems to me that the Snuneymuxw people and the Gabriola Museum have been able to find that balance by keeping reproductions of the glyphs on display in a natural respectful setting–along with providing suitable explanations and interpretative materials–while avoiding demeaning the symbolism of the images by allowing them to become a form of children’s activities or “entertainment”.

As for the connection with copyright, while copyright cannot be invoked to prevent unauthorized reproduction in this case—it’s just not the right instrument—many of the principles of copyright, including the concept of moral rights, are in play here. Fundamentally, it is a question of respect; respect for the artist (or artists) who created the work, and respect for the meaning and essence of the work. While the artists who created the works are not in a position to give or withhold permission to use or reproduce them, the stewards of the works (the current leaders of the tribe or First Nation) are entitled to do so. To me that is similar to basic elements of copyright—respect for the results of creative endeavour through appropriate use with permission (with or without an incentive as the case may be).

© Hugh Stephens 2021. All Rights Reserved.

Opera and Copyright: Why is Mozart Performed More Often than Modern Composers? (Is Copyright the Reason?)

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Early in the New Year I thought it might be fun and interesting to look at how copyright and opera intersect, not that much opera is being performed these days. However, if the COVID vaccines are rolled out quickly and effectively (right now this seems more like a hope than an expectation), allowing public performances to resume, then La Scala, the Met and all the other famous venues may be back in business by the end of 2021. That’s something for lovers of opera to look forward to.

Many of you may fall into the category of true opera aficionados. You’re able to hum famous arias, know all the main characters in The Magic Flute, can sing the libretto in Italian of The Barber of Seville, and are able to recite Beverly Sills’ most renowned performances. I also suspect that many others are a bit like me. We love to go to the opera occasionally, for the music, the costumes, the whole spectacle. And when we go, we usually choose to see some very familiar work—Carmen, or Marriage of Figaro or La Bohème, for example—because, well, they’re familiar.  We like to hear the music and songs that we remember, and follow the stories that we more or less know (while recalling that all opera plots are generally ridiculous and that most of the characters on stage will eventually come to a tragic and unhappy end). To keep us—the average opera-goer—coming back for more, artistic directors ensure that their programming includes a healthy dose of the classics. More avant-garde, experimental pieces are usually mixed in but the bread-and-butter of most companies, seeking to ensure balanced budgets and full houses where possible, are the tried and true “recognizable” works. There is nothing very surprising in this. Symphony orchestras work much the same way, balancing the need for popular appeal by regularly playing the classics combined with trying out new pieces to expose audiences to something different.

Thus it was with great interest that I recently read a research piece from WIPO, the World Intellectual Property Organization, that suggested copyright might be the reason why more classical operas, which are in the public domain, are performed than are modern pieces that are still under copyright protection. (There was the usual disclaimer for such think pieces that the views expressed were those of the authors, and did not necessarily reflect the views of WIPO or its member states.). The study’s focus is stated as follows; 

“Today, the works of almost no living composers are performed on global opera stages….Why are we not seeing more performances of modern operas? What are the factors that have driven new works off the stage? While previous research has focused around how copyright incentivizes composers to create new work, we’ll be taking a look at the economic role of copyright and how it affects opera houses’ decisions around staging and reusing works. Is granting exclusive rights to new opera works actually excluding them from the stage?”

The paper points outs that of the 50 most widely performed operas globally in 2017-18, only 1 percent of them were written by composers born in the 20th century (29% of composers were born in the 18th century and 70% in the 19th century). The only 20th century work in the top 50 was Leonard Bernstein’s Candide. It had 111 performances during this time period. The most popular, Verdi’s La Traviata, had 853.

To the question of whether copyright encourages creativity in the opera world, the paper argues that while in theory copyright incentivizes composers to create new operas by granting them exclusive rights, in the case of opera this might not be true because “new, avant-garde works tend to attract smaller crowds and sell at lower ticket prices compared to the many popular works in the public domain. Opera houses have low expected revenues from these performances so the cost of licensing them from composers becomes too high.”

The first part of this statement is certainly true, but does it follow that lower revenues mean that the cost of licensing new works is too high relative to anticipated income? To me this is a questionable conclusion although the paper states that it can document that works are performed more frequently (plus 15 %) once they are out of copyright than when they are under copyright protection.

The extension of the argument that new works are performed less often because of licensing costs is that artistic directors select which operas they will perform based on whether or not they have to pay royalties. Why not go for Mozart, when his work is in the public domain, over, say, John Adams, the composer of Nixon in China, Doctor Atomic and a number of other modern operas. Could licensing fees really be that significant a disincentive and does payment of royalties skew the decisions as to which works to produce? I think this is a dubious proposition where adding 2 plus 2 has yielded 5. Yes, many fewer modern operas are produced than classical works, and yes, modern operas require payment of copyright licensing fees whereas classical works don’t. But is there a direct correlation between these two sets of facts or are there other factors at play—factors such as the tastes of “average” opera-goers like me?

In a search to find out, I contacted the artistic director of my local professional opera company (Pacific Opera Victoria), Maestro Timothy Vernon, putting the question to him. He responded that “royalty payments are important in drawing up a workable budget, but are seldom if ever a determining factor in deciding to produce any given opera.” Maestro Vernon said that if a copyrighted work is chosen, there will be a negotiation with the publisher, taking into account factors such as the size of the company, its audience and budget, and the popularity of the work. As artistic director, while mindful of financial parameters, first and foremost he considers artistic aspects in making choices as to what works to offer to his audiences, recognizing that there are 400 years of opera creation to draw from.

That is only one view, but I suspect it is a common view among those who determine what works to offer audiences in the opera world. Artistic considerations come first.

Another factor to consider is the cost of royalties in comparison to the considerable expense in putting on an opera. I am not privy to what it costs to license an opera production but as Timothy Vernon noted, often a negotiation takes place. In the elusive search for truth, I went on the internet and tried to research the cost of vocal scores and full scores for a couple of modern operas, namely two by John Adams, Nixon in China and Doctor Atomic. Some well-known sources of musical scores are the famous British music publisher Boosey and Hawkes and the longstanding US firm of J.W. Pepper (which sells the Boosey and Hawkes produced vocal score of Nixon in China). Ordering the vocal score of Nixon directly from Boosey and Hawkes will cost $99 (all prices in USD). If ordered from J.W.Pepper the price is a bit cheaper at $85. The full score is available for only one piece from the opera, Chairman Dances, for $45. Boosey and Hawkes informed me that the full score for Nixon was not available for sale, but perhaps it could be available “to hire”. The full score of Doctor Atomic is available from J.W. Pepper for $175 and just the vocal score for $75. This seems like a pretty modest sum, but then I am not sure how many copies are required. I assume that if a large number are purchased for the choir, a bulk rate could be negotiated. In sum, the amounts involved are more than trivial but less than significant, and compared to the total cost of mounting an opera, the cost of copyright licensing can hardly be considered the key factor in determining whether or not to stage a particular work. To the question posed “Does copyright actually encourage the creation and promotion of new opera works?”, I would have to answer that it certainly does not discourage it.

While I disagree with the proposition that “copyright may act as a barrier to entry and licensing cost hurdle for new, more avant-garde operas, particularly for new productions that are outside of an opera house’s standard production repertoire” (because the WIPO research piece overstates the role of copyright fees in determining which works get air time), the issue of how new pieces can get performed in order to attract recognition and popularity among audiences is a real one. The author of the WIPO document (Alexander Cuntz) offers a couple of suggestions to remedy this problem. First, he proposes that consideration be given to establishing a new collective management system for licensing opera productions, which would require that a new collective rights management organization be established.

Another is to encourage the testing of new opera on both stage and on digital platforms, in order to give new productions greater exposure. If copyright fees are truly a disincentive to staging more new operas (a conclusion about which I have reservations), he argues that lower streaming royalties could be negotiated to encourage digital productions. However, if copyright fees are not the real problem but simply mask the basic issue which is the unfamiliarity of audiences with new works, distributing productions online will only partially solve the problem. Digital distribution will reach more audiences, but there are two issues that need to be addressed; production costs and revenue generation. Production costs for a digital opera production may be somewhat less given that it only needs to be performed once, and then recorded, but initial costs will still be close to a live performance. On the revenue side, it has proven difficult in many fields to raise significant revenue from digital offerings, or at least as much revenue as from a live performance. A livestream performance should bring more revenue than a recording, but even a livestream performance is unlikely to begin to match the cost of seat at a live opera. Views of a recorded performance will generate a much lower return. One can argue that the lower unit cost of a digital performance can be offset by repeated viewings, but this is unlikely to close the revenue gap.

The WIPO paper posits the conundrum that copyright exists to incentivize new production yet, if you buy the argument in the study (which I don’t), it also tilts the playing field in favour of public domain works because of the cost of royalties. However, you could make the same argument about plays or symphonies, but I doubt if the timeless popularity of Shakespeare is a result of Hamlet or Romeo and Juliet being in the public domain as opposed to the work of any modern playwright. Rather it is a result of audience choice, and familiarity with those classical works that have stood the test of time precisely because they are the best of the lot. Artistic directors have learned to their peril that while they may wish to “educate” their audiences and challenge them with new, sometimes avant-garde works, the operas that pay the bills come from a limited repertoire of classical favourites. The finger of copyright rests very lightly if at all on the scale that determines which operas get selected for production. In fact, I will wager that in almost all cases, copyright is scarcely a factor at all.

© Hugh Stephens 2021. All Rights Reserved.

Making Sausage: How the CASE Act Finally Became Law

To kick-off 2021, which we all hope will be a better year than the last annus horribilis, let’s look back at one of the closing chapters of 2020, the last minute passage in the US of the COVID-19 relief package and government funding bill which was finally signed into law by Donald Trump on December 27, 2020. While of primary interest to many Americans because of the COVID relief payments contained in the bill, it also included an important piece of copyright legislation, the CASE (Copyright Alternative in Small-Claims Enforcement) Act. How this welcome legislation ended up being included in the year-end spending bill is part of the “meat-grinder” story of US politics. It started with an individual Senator.

One of the unique features of the US congressional system is the power that elected members of Congress exert over the legislative process, unlike the Westminster system that readers in Canada, the UK, Australia, New Zealand, and India (among others) will be familiar with. Under the Westminster model, the executive branch, aka the “government”, usually controls the legislative branch (Parliament) through an elected majority or coalition. Once legislation has been introduced by the government, it is normally passed by Parliament and becomes law subject to the normal process of review through an all-party committee–which in most cases is dominated by government members. By contrast, in the US system there is no guarantee that legislation desired by the President will become law.  Congress is not easily controlled, especially if one or both Chambers of Congress are dominated by a party different from that of the President. Given the US system of checks and balances, as we have seen when an executive branch (Administration) does not control the legislative (Congress) branch, all sorts of things can happen—or not happen. Just ask Barack Obama.

Moreover, individual Members of Congress–normally Senators of long-standing–have far more power than individual Members of Parliament in a Westminster system. They can hold up legislation by placing a “hold”, thereby preventing it from reaching the floor for a vote (assuming they have the support of their Senate leader), or broker deals to add amendments to a piece of legislation or even add unrelated legislation to a “must pass” legislative bill, tacked on as a free rider. Usually the free riders are bills that have been unable to get legislative traction for one reason or another yet are sufficiently unobjectionable that their passage as part of a larger, important spending bill (which usually has bipartisan support by the time it goes to a vote) does not become a make-or-break issue. It is standard practice that many extraneous bills are added as “decorations” to the annual year-end spending bill, and 2020 was no different.

Assuming passage in both Chambers of Congress, there is one more step before a bill—with all its “decorations”—becomes law. It goes to the President for signature. The President can sign, not sign, or veto the bill. While it may seem strange, there is a distinction between not signing and vetoing. If the President does not sign a bill (but does not veto it), it still automatically becomes law ten days (excluding Sundays) after it has been physically conveyed to the White House. However, if the President vetoes the legislation by sending it back to Congress, it is blocked–but can still become law if the veto is overridden by a two-thirds majority vote in each Chamber, with both the House and Senate needing to sustain the override. So much for the civics lesson for those of you who have forgotten, or never knew, the arcane details of how the US system works.

So how does all of this relate to copyright? The history of the CASE Act is an illustrative example of how a determined and obstinate Senator can block the expressed will of both Chambers of Congress, but also a lesson in how a strategic move by supporters of the Act finally succeeded in getting it passed by attaching it to 2020’s critical year-end money bill, thus getting it through the meat-grinder and bypassing the obstruction of one Senator, Ron Wyden of Oregon.

The CASE Act may not be much of a household word to creators and those interested in copyright outside the United States, but in the US it is a welcome and important step forward in allowing smaller creators to deal with copyright infringements of their works without having to resort to expensive court procedures. Think small claims court for copyright holders. The CASE Act will establish a Copyright Claims Board within the US Copyright Office where small claims can be adjudicated. Claims Board findings will not be binding and can be appealed to the courts, but nonetheless will offer an important alternative to expensive litigation. The Act has been opposed by several anti-copyright groups, such as the Electronic Frontier Foundation, Public Knowledge and other “usual suspects”, who have attacked it on the basis that it becomes easier for copyright owners to file infringement claims. This is perfectly true, and is precisely the point of the legislation, which is to level the playing field for small creators. There are several limitations to prevent any supposed “abuse” of process, such as limits on the amount of damages that can be claimed ($15,000 per work and $30,000 per claim) as well as an opt-out for the accused infringer who has the option of declining to participate in the process, instead resorting to litigation.

The legislation in its present form was introduced into the House of Representatives in May, 2019 and in October of that year passed overwhelmingly by a bipartisan vote of 410-6, with 15 abstentions. A companion bill was introduced in the Senate sponsored by both Republican and Democrat Senators and was approved unanimously by the Senate Judiciary Committee. At that point, Senator Ron Wyden (D-ORE) placed a “hold” on the Senate bill, stopping it in its tracks and preventing it from moving forward until he released his hold. Wyden claimed that he was not opposed to the Bill per se but had concerns with some of its provisions. For example, he claimed the ceiling of $30,000 was too high, that minors posting memes could be targeted, that the small claims process would stifle fair use, and on and on. All these and other points were effectively and carefully rebutted in detailed post written by Terrica Carrington of the Copyright Alliance, which along with many other creative and pro-copyright groups, supports the legislation. Negotiations were undertaken with Wyden’s office over a period of several months to try to reach a compromise, but it became clear that he was not really interested in finding a solution. A group of professional photographers in Oregon even tried to shame Wyden, putting up a billboard in Portland in January of 2020 that asked “Why are you holding Oregon creators hostage?” Wyden would not be moved.

Fast forward to late December 2020 and the Congressional impasse over approval of the $900 billion COVID-19 relief bill, a piece of legislation with 5,593 pages, apparently the longest bill ever. Along with provisions that would provide immediate financial relief to American families and businesses, it included a $1.4 trillion spending bill to keep the US Government going, and a host of other measures bundled into the year-end legislation. The CASE Act was one of the add-ons, along with a number of other pieces of added legislation. The New York Times reported that among the additional items was legislation regulating horse-racing, a pet project of Senate Majority Leader Mitch McConnell from Kentucky, as well as measures as varied as eradication of murder hornets,  control of online sales of e-cigarettes to minors and authorization of federal land for the construction of the Teddy Roosevelt Memorial Library in North Dakota.

The Consolidated Appropriations Act, 2021, with all these inclusions, finally passed in the Senate near midnight on December 21 by a vote of 92-6 and in the House by 359-53. Such bipartisan action is rare in Washington these days, but the clock had run out both on funding the US government as well as getting needed relief during the COVID-19 pandemic to US families. After the key compromises on spending were worked out between the Republican and Democrat congressional leadership, the Bill passed quickly with little scrutiny. Donald Trump threatened to veto it for various reasons (none related to the Case Act) but in the end, he signed.

How much attention was paid by legislators to the “add-ons” such as the CASE Act and others? It’s fair to assume that not a lot of attention was paid to many of the add-on provisions in the dying days of the “Lame Duck” session in December 2020, but with respect to the CASE Act there had already been plenty of scrutiny over a number of years, as well as thorough review in Congress when it was first introduced. It hadn’t progressed legislatively because, as pointed out, it had become hostage to the individual agenda of one Senator despite widespread support. With its passage, there were the predictable “sky is falling” claims from anti-copyright groups, who criticized the legislative process as well as the legislation itself, but in the end the will of Congress was enacted through the omnibus mechanism of the Consolidated Appropriations legislation. The US Copyright Office, which has supported the CASE Act proposals since release of its own detailed study of the issue back in 2013, will now be required to establish detailed procedures to implement the legislation.

While omnibus bills are arguably not the most transparent legislative procedure for getting things done, they are increasingly being used, and not just by the US Congress. In Canada, the previous Conservative government of Stephen Harper had a proclivity for bundling many unrelated issues into omnibus finance bills. Critics claimed that this tactic made it impossible for Parliament to adequately scrutinize legislation. Indeed, the Harper government passed the last amendment to Canada’s Copyright Act, a provision that extended the term of copyright protection for sound recordings from 50 years after release to 70 years, in the 2015 omnibus finance bill. Despite criticism from opposition parties at the time, the subsequent Liberal government of Justin Trudeau has also resorted to omnibus legislation, with a budget bill that included legislation related to immigration, food and drug regulation, parks and indigenous services, and other unrelated items. Given the delays that legislatures often face today owing to legislative backlog, as well as the increasing inability to find bipartisan solutions as is evident in the US Congress, bundling legislation is becoming an increasingly common means of getting things done.

Was inclusion of the CASE Act provisions in the year-end spending bill the ideal legislative solution? That probably depends on your perspective. It has been said that politics is the art of the possible, so if Ron Wyden was justified in using the rules to block a piece of legislation that he didn’t like, proponents were equally justified in harnessing the rules to achieve their objective. The creative community in the US, which struggled for years to bring something like the CASE Act into being, was delighted with the outcome. Ron Wyden, who saw his one-man “hold” tactic defeated, probably less so.

Otto von Bismarck is reputed to have said, “Laws are like sausages. It’s better not to see them being made.” This particular sausage took a long time to get made, but in the end it emerged intact from the meat-grinder. It is now part of the menu; a welcome additional measure to help the creative community in the US protect its rights against widespread copyright infringement through what the Copyright Alliance describes as, a “voluntary, inexpensive and streamlined alternative”. That’s pretty tasty sausage.

© Hugh Stephens 2021. All Rights Reserved