AARL

The Sounds of Silence: Copyright and Human Rights

Alex Byrne

Abstract: This paper discusses the processes of cultural accretion and adaptation. This identifies borrowing and adaptation as integral to creative processes. Modern transport and communications technologies have facilitated and accelerated the processes of creating new works incorporating elements of the 'old' but retaining some of the 'old' identity. Culture is enshrined in the foundation of human rights law with consequences for both access to and protection of intellectual property. This is demonstrated through consideration of both artistic and scholarly creation with particular attention to indigenous traditional knowledge.

Which part did you nick?

Some would say that I have breached copyright by appropriating the title of Simon and Garfunkel's well known song as the title for this paper. There is a view abroad that all copying of passages from other works must be subject to copyright and, preferably, remunerable. This view, driven by economic interests - especially in the music, film and software industries - is taking copyright away from its original conception as a balance of individual versus community interests. If successful, this view would attempt to freeze intellectual property and demand that any use whatever must be subject to prior permission and financial recompense to the 'owner'. It is an absurd position which is already doing grave disservice to imaginative and scholarly work and will severely inhibit creativity and research if it should become the rule. In a process of reductio ad absurdum it would mean ownership for the first person to identify or express anything at all - even silence!

Indeed, in a recent cause celebre, the music publisher of John Cage has threatened to take action against Mike Batt for copying silence. [1] As Batt's mother reportedly said on hearing about the letter, 'Which part of the silence are they claiming you nicked?' Batt had included One Minute's Silence, a silent 60 second track, on the latest album of the Planets and credited it to Batt/Cage 'just for a laugh'. His humorous gesture of homage to Cage, who famously composed a 'silent' piece for piano entitled 4'33' in 1952, attracted the attention of the publisher's representatives. Batt responded 'But my silence is original silence, not a quotation from his silence'. Cage in fact recognised that there is no absolute silence, that 'silence' means the absence of intended sounds or lack of attention or awareness. [2] This was demonstrated at the first performance of 4'33'when the sounds of the audience's infuriation swelled with each of the piece's three 'silent' movements. That swelling annoyance drowned out the ambient sound of the surrounding forest and raindrops. By, in a narrow sense, removing the 'music', the piece showed that it, as is the case for all art, was constructed by composer, performer and audience in the context of a particular environment. Not only is there no absolute silence but no silence can be absolutely original.

Composer, performer and members of the audience each bring cultural and personal knowledge which evoke differing responses. Their interactions with the work are conditioned by the resonances which they perceive, consciously or unconsciously. Their responses - delight, humour, boredom, anger - are framed by their social and cultural expectations and the relationships they discern between the work and their cultural understandings. The responses operate in and are conditioned by the physical environment at the time of interaction as well as the contemporary and historical context.

For the composer, this may be demonstrated in borrowing from earlier works. Burkholder defines borrowing as the ways in which 'a new piece may use or refer to existing music in various ways' including qualities identified with another musical tradition (such as sounds and gestures from jazz incorporated into a symphony) and figuration typical of one instrument used for another. [3] He notes that following the increased emphasis on originality, especially from the nineteenth century, direct borrowing or imitation could lead to accusations of plagiarism. However, as the great nineteenth century critic Ruskin warned, 'Originality in expression does not depend on invention of new words; nor originality in poetry on invention of new measures ... Originality depends on nothing of the kind': its originality lies in the composer's ability to make the work look fresh. [4] Scholes argues that originality covers two distinct qualities: 'novelty in melody, harmony, form, orchestration, etc'; and 'a strong expression of personality allied to a high degree of craftsmanship'. [5] In this understanding of originality, the borrowing of themes or phrases is not plagiarism if the composer has created a new work. For example, many of the most popular Victorian melodies (including Highland Laddie, Mendelssohn's Wedding March, Elgar's Land of Hope and Glory, and the popular song Wait till the clouds roll by) have remarkably similar opening phrases but each would be regarded as original and distinctive. [6] Likewise Palestrina's Parody Masses and Madrigals draw on the works of Cipriano de Rore among others. [7]

The same is of course true in the other arts. When Picasso appropriated the visual ideas of African art, he used them anew, abandoning their former purpose but exploiting their formal vitality and their emblematic evocation of savagery (at least for early twentieth century bourgeois eyes). [8] The contrasting edges of the mask-like faces and the softer bodies offered appropriately dramatic imagery for Les demoiselles d'Avignon. His exploration of the Cretan myth in Minotauromachy evokes key symbols of European history, creating a personal commentary on savagery and civilisation. [9] His revolutionary contribution to modern art would not have been possible without the capacity to draw on the motifs, images and myths of earlier cultures and artists. Perhaps even more confronting to bourgeois eyes were Duchamp's readymades which repurposed familiar objects - such as a bicycle wheel, urinal or bottle washer - as works of art.

As viewers and listeners, we see such works through the prisms of our own times and experiences. Picasso's Guernica confronts us with the force of the bombing of the Basque town, which inspired it, but in the knowledge of the horrors which have followed including the bombing of Coventry, the incendiary firestorms which destroyed Dresden, the atomic holocaust of Hiroshima and Nagasaki, up to the digitally targeted missile attacks of the Gulf War and this year's 'War on Terrorism'. We hear Palestrina through the ears of members of a largely secular society, who can hear sublime renditions through the best digital recording and reproduction equipment. Not only do we hear them outside the soaring chancels for which he composed but through a medium which, by its very nature, deconstructs sound waves into digital data and reconstructs them as 'faithfully' as possible. Its audience knows Bach and his successors and cannot but hear Palestrina in that knowledge. That audience cannot hear Palestrina in the cultural or technological context of his contemporaries.

This extended argument demonstrates the importance of the accretion of themes and motifs to the construction of culture. Local cultural traditions have developed the depth and breadth of their distinctive identities and they have fed and been fed by other cultural traditions. Borrowing is integral to those processes as it has been throughout history. The pace quickened with the European colonial hegemony from the sixteenth century but has become immeasurably faster since the development of modern transport and communications technologies. In the days of satellite and optical fibre communications, cultures have become increasingly global and pluralistic. The processes of borrowing and adaptation have become even more prevalent. A few clicks will cut and paste a quotation, image or sound bite.

Hints of 'foreign' images and themes can set a context for new works, continuing the processes of cultural development as ideas inspire innovation and its elaboration. The 'original' works do not necessarily disappear since we can readily identify elements drawn from differing traditions, past and present. A few notes will suggest an Indonesian gamelan piece, a few dots an Aboriginal Western Desert painting. That borrowing of insubstantial portions is not theft nor should it constitute breach of copyright. It might represent plagiarism, especially in academic discourse, but there are established methods of attribution and sanctions for failure to apply them. Bad practice is bad practice - it does not render borrowing remunerable.

Human rights and culture

This brings us to 'culture', the amalgam of the traditions discussed above. Culture is a human right. Its expression and communication are human rights which were proclaimed in Article 19 of the Universal Declaration of Human Rights:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. [10]

Article 18 articulates the right to freedom of thought, conscience and religion, Article 26 the right to education and Article 27 'the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits'. Together these articles express the right to culture in its broadest dimensions. In concert, they proclaim each person's rights to enjoy Palestrina's music both for its inherent beauty and, if he or she is so disposed, as an inspiration to spirituality. In themselves and through their codification in international, regional and national covenants and laws, the articles aim to ensure that the traditions of specific communities can be sustained while others can be informed and inspired by them. Thus, if the provisions can be applied successfully, the Yolngu of north eastern Arnhem Land will be able to maintain their traditions while visitors and others can derive interest and pleasure from their paintings, carvings and music.

But the Universal Declaration goes further. Article 27 advances a dual right:

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

It offers a full right to enjoy cultural and intellectual works but with guarantees of protection of both moral and material interests of authors (used in the most general sense of creators of 'scientific, literary or artistic production'). Thus, at this fundamental level of human rights law, a balance is expressed between the interests of the community and the interests of the individual. This is a balance which goes to the heart of the Anglo-American tradition of intellectual property law, which is followed in Australia, and which has conferred limited property rights to reward and encourage production while recognising the community interest in unfettered access and use. The Anglo-American tradition has emphasised the material interests of authors by providing for control of exploitation, with significant and important exceptions, for a limited period followed by reversion to the wider community. Only latterly has the concept of moral rights, long recognised in Europe, been adopted in countries such as Australia.

The protection of material interests allows authors to control their intellectual property for a limited period. During that time they may sell their rights, in whole or in part, or licence use. Provision is made in Australian copyright law for statutory licences and approved copyright collecting societies to facilitate the use of copyright materials in exchange for agreed royalties or other remuneration. Important exceptions relate to fair use (limited to the purposes of research or study in Australia), use in government and the use of inconsequential portions. At the end of the legislated period of protection, the copyright works move to the public domain in which they may be freely exploited by all. The purpose of the limited right conferred for a limited time was to allow authors to benefit materially for a time in order to encourage production.

Moral rights on the other hand are enduring and designed to protect the rights of the author beyond the period of any economic reward. Principally concerned with the right of attribution and the right of integrity, they enable the author to assert and be recognised for her or his authorship and aim to ensure that the work is not modified or distorted. Since its introduction into Australian intellectual property law, the latter has become particularly important in architecture, for example, since it enables designers of buildings and structures to object to subsequent modifications if they feel that the modifications would compromise their conception. While this can be irksome for subsequent designers and owners, who might wish to make changes for pragmatic reasons, the provision can do much to preserve the ideas expressed through the works. The process of notification and response, opening the possibility of negotiation, can offer an opportunity to minimise unsympathetic changes.

Balance in copyright

Inherent in this legal model, which has been developed through statute and precedent since the Statute of Anne, is the notion of balance. The system of intellectual property law - including patents, trademarks and designs, and copyright - aims to balance the rights of the individual creator with those of the broader community, both in the present and into the future. It recognises the rights of creators to have their works attributed and protected from misuse and also to benefit materially, that is financially, from them for a time. But it balances that recognition by acknowledging that that 'scientific, literary or artistic production' belongs to and must benefit the whole community. It constitutes the heritage of the community from the past and its legacy to the future. In a broader sense, it constitutes the heritage of the world's peoples - so the destruction of the monumental Buddhist statues at Bamiyan was not only a crime against the original sculptors, and the people of Afghanistan, but indeed against all humanity.

This balance recognises both public and private interests but also implicitly acknowledges that all creative works are built on previous works. Without a shared language and its references and images, literature is incomprehensible. Without agreed scientific and technological foundations, a discovery or invention is unusable. In Newton's famous words, we see further by standing on the shoulders of giants. We pay our debt to those giants by acknowledging their work, by according it moral rights. Plagiarism offends against the right of attribution, as distortion offends against integrity. Through honest attribution and accurate portrayal, authors build on the works of others to orchestrate a system through which the human rights to expression and to information are articulated. Good academic practice, of course, demands accurate citation of previous work. In artistic contexts, a less explicit referential approach may be used which nonetheless clearly acknowledges an author's debt to another. Thus, Joyce clearly acknowledges his debt to Homer without the need to make it explicit by a footnote in Ulysses. Whiteley similarly references Bosch in his triptych Alchemy. Neither is guilty of plagiarism nor of breach of copyright.

Financial imperatives

In the material sense, the balance between individual and community interests has been achieved by limiting the period of protection and its extent. The capacity to benefit financially is protected even when the creator sells the right to another, a protection which bolsters the financial return to the original creator and supports exploitation of a work by the new owner. It can similarly assist the beneficiaries or successors of the creator or owner. But eventually, after the period which has been deemed by the legislature to offer a fair return, the patent will expire or copyright be exhausted and the work will lose its protection and revert to the public. The point of exhaustion of the period of copyright represents the fulcrum of the system of balance: at that point the protections granted to the owner give way to the protections of the interests of the community.

Despite those strong protections, the period of protection under copyright has been progressively extended to protect financial interests, notably those of the Disney Corporation in the United States. The successive extensions are being challenged currently in the 'Sonny Bono case'. If the extensions continue, exhaustion of copyright will take longer and longer. The fulcrum will move, tipping the balance further from community to private interests. This feeds the private interests of large corporations which have secured film libraries and other copyrighted materials, including scholarly literature. The scholarly literature will become even more of a commercial asset, and less of the intellectual heritage of scholars and all peoples.

Similar threats are being made to the long established limitations on the extent of protection. They include the concept of fair dealing and the capacity to make use of an insubstantial portion without remuneration. This is under threat from micropayment systems which are being developed for application under digital rights management systems. They are already used to regulate the use of digital sampling in the composition of new works of contemporary music. Taken to their full extent they could impose a tax on the creation of such works as those by Lin Onus which combine Aboriginal motifs with realist painting referencing artists such as Hokusai and Escher. [11] Following these trends, together with developments in the protection of databases, it is possible that micropayment might be demanded for a citation included in the reference list of an article - which would impose a 'citation tax' on the system of scholarly attribution.

It might be argued that such suggestions are fanciful but remuneration for sampling music is now well established and the Microsoft Corporation, among others, has acquired large image archives to exploit. It is therefore not inconceivable that the owners of large datasets of scholarly information might consider additional ways of mining their resources to secure additional financial returns. It is the owners' prerogative to introduce additional charges, if the law will support them, since scholarly authors have signed over all rights in return for publication in the most prestigious journals. The only constraints are the law and the owners' perception of the likely return versus any market dislocation.

Indigenous traditional knowledge

Particular concerns relate to copyright and indigenous traditional knowledge. They result from the particular character of indigenous knowledge systems. As the attendees of the 15th Standing Conference for Eastern, Central and Southern African Library Associations 2002 noted:

... western science and technology has for many years expropriated the knowledge resources of indigenous and other local peoples, especially those in the south. We note that the need for technology transfer, capacity building, and protection of indigenous and local traditional knowledge against exploitation should be observed as part of the Convention on Biological Diversity, the ILO Convention 169 and related sustainable development conventions.

We recognize that indigenous traditional knowledge has intrinsic value and importance and provides solutions to some of the most difficult modern issues. It is vulnerable both because it is exploitable and has been exploited, and that it is rapidly disappearing because of the loss of Elders and the significant decline in emphasis on transmission of this knowledge to the modern young generation. Indigenous traditional knowledge needs to be protected for the benefit of indigenous peoples as well as for the benefit of the rest of the world. [12]

Their views, informed by the work of others such as Nakata[13] have informed the development of a statement on indigenous traditional knowledge by the International Federation of Library Associations and Institutions (IFLA) at the time of writing this paper. At the same time the World Intellectual Property Organisation (WIPO) is planning the fourth session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. [14] Its agenda includes discussion of operational definitions for traditional knowledge, a review of its existing intellectual property protection, and consideration of the possible elements of a sui generis system for the protection of traditional knowledge. A major concern, as indicated by the SCECSAL statement above, is the appropriation and copyrighting by others of indigenous traditional knowledge for commercial exploitation.

Conclusion

This paper has taken a broad approach to the question of copyright and human rights. It has drawn on art and music as well as scholarly publication to explore some of the challenges posed by recent trends in copyright law and practice. Many of those challenges are more easily identified in paintings, music, literature and inventions. They nonetheless can affect scholarly publication which is the primary concern of academic libraries even though works of the imagination are often the stuff of research and collected by the libraries.

The dangers to the traditional balance inherent in the Anglo-American copyright tradition extend beyond the arts to all forms of publication, including the fruits of scholarship. That balance and the moral rights latterly incorporated into Australian copyright law are direct consequences of fundamental human rights. They form the core of the equitable system of intellectual property which operates on agreed conventions to respect the interests of all parties: author, interpreter and audience.

As such they should be tampered with only at our peril. But there are grave threats to those fundamental rights, through the extension of copyright protection, the elimination or constriction of limitations and the development of new systems of exploitation. It is important to maintain the balance, to both protect the interests of creators and to facilitate and encourage the widest possible access. If we do not, and if the efforts of the copyright zealots prove successful, we will still the hubbub of the informed crowd. Outside the channels of regulated publication we will have the sounds of silence.

Notes

1. [D Lister 'Big Noises at Odds over the Sound of Silence' The Independent Independent Digital 21 June 2002 http://www.independent.co.uk
2. [L J Solomon 'The Sounds of Silence: John Cage and 4'33'' no 1998 http://www.azstarnet.com/~solo/4min33se.htm
3. [J P Burkholder 'Borrowing'in S Sadie (ed) The New Grove Dictionary of Music and Musicians London Macmillan 2001 pp5-41
4. [J Ruskin cited in PA Scholes 'Composition' in J O Ward (ed) The Oxford Companion to Music Oxford OUP 1970 pp218-227
5. [P A Scholes 'Composition' op cit
6. [P A Scholes 'Melody' J O Ward (ed) The Oxford Companion to Music Oxford OUP 1970 pp619-624
7. [P A Scholes 'Parody' in J O Ward (ed) The Oxford Companion to Music Oxford OUP 1970 p760
8. [R Hughes The Shock of the New: Art and the Century of Change London BBC 1980
9. [E B Feldman Varieties of Visual Experience: Art as Image and Idea 2nd ed New York Abrams 1971
10. [United Nations 'Universal Declaration of Human Rights'1948 http://www.udhr50.org/UN/default.htm
11. [M Neale Urban Dingo: The Art and Life of Lin Onus 1948-1996 Brisbane Queensland Art Gallery and Craftsman House 2000
12. [SCECSAL Indigenous Traditional Knowledge 15th Standing Conference for Eastern, Central and Southern African Library Associations 2002
13. [M Nakata 'Indigenous Knowledge and the Cultural Interface: Underlying Issues at the Intersection of Knowledge and Information Systems'68th IFLA General Conference and Council, Libraries for Life: Democracy, Diversity, Delivery 18-24 August 2002 Glasgow Scotland Glasgow IFLA 2002 http://www.ifla.org/IV/ifla69/papers/149-138e.pdf
14. [WIPO 'Draft Agenda' Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore Fourth Session Geneva 9-17 December 2002 Geneva World Intellectual Property Organization 2002 http://www.wipo.int/

Alex Byrne, university librarian, University of Technology, Sydney. E-mail: alex.byrne@uts.edu.au.nospam (please remove the '.nospam' from the address).