Friedemann Kawohl fkawohl@t-online.de & Martin Kretschmer mkretsch@bournemouth.ac.uk

1. “Quotation in Music”paper delivered at ESRC/AHRC Cultural Industries SeminarBournemouth, 16 September 2005 Friedemann Kawohl fkawohl@t-online.de & Martin Kretschmer mkretsch@bournemouth.ac.uk

2. International framework Berne Art. 9(2): “three-step-test” for possible exceptions to exclusive reproduction right: • special cases • not conflicting with normal exploitation • not unreasonably prejudicing the legitimate interest of the author Berne Art. 10(1): mandatory permission “to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose” Rome Art. 15: exceptions possible for • private use, reporting current events, teaching and scientific research TRIPS (Art. 13) & WIPO Internet Treaties (Art. 10) require that all limitations to Berne works comply with “three-step-test”; TRIPS Art. 14(6) permits only the Rome exceptions to sound recordings UK: public interest (common law but affirmed in s. 171(3) & Ashdown); fair dealing ss. 29-30; Germany: constitutional Kunstfreiheit; but statutory Melodienschutz; US: fair use/first amendment

3. Practical effects (music) Sound recordings: have to be licensed, if recognisable. Thus tendency • to hide sources • to produce “sound alikes” Works of music: arrangements are treated as “cover versions“ (= 100% of publishing rights to “original”) Appropriation art problematic; cultural icons unavailable for critical comment • 1966: Beatles Revolver album uses radio samples • 1977: Beatles agreed to samples on The Residents • Today: Permissions to use Beatles catalogue will always be refused

4. Original and copybefore ~1750 (I) No clear distinction: original and copy Operas always “new“ Old libretti, but Music was “produced“ every season anew. Status of composer is similar to today‘s theatre directors Conductors reuse popular arias of the previous seasons Pasticcio: e.g. 1726 Florence production of Didone abbandonata includes arias by Vivaldi, Orlandini and Gasparini

5. Original and copybefore ~1750 (II) Older music was copied in churches and monasteries Copyist adapted music in accordance with regional traditions and the changing zeitgeist Authenticity and originality less important than the function for services

6. Observance of rules + knowledge of classic works Music: an art without works No idea, no intrinsic expression Compositions are done by conductors and soloists Aural traditions of interpretation Genius and originality “works of music“ music contains ideas (romanticism) Composing as a profession Principle of werktreue (authenticity) Aesthetic change 1750-1850

7. Genius + originality “works of music“ music contains ideas (romanticism) Composing as a profession Principle of werktreue “Anything goes“ + market success Performance counts and sound recording, not score Function: “expression“ of the dancer + reminiscence (film) Composing is only one task: cf. arranging, producing Appropriation art, arrangements ubiquitous Aesthetic change ~2000

8. Transformative use:traditional analysis Personality effects critical appropriation plagiarism arrangement transcription quotation Labour appropriation

9. Transformative use:the information society plagiarism Confusion about sources Critical appropriation arrangement transcription quotation Competition with original

10. Transformative use:examples Personality effects?Confusion about sources? ZimmermannGrey AlbumBerioVerveThe BelovedHarry Potter Appropriation of labour?Competition with original?

11. ESRC/AHRC Cultural Industries Seminar: The Effects of Intellectual Property on the Organisation of Cultural Production Centre for Intellectual Property Policy & Management (www.cippm.org.uk) Bournemouth University