Copyhype

A Manual of Musical Copyright for the Use of Music-Publishers and Artists, and of the Legal Profession was first published in 1905, and the full text is available on Google Books. It is perhaps the first treatise written to focus specifically on the law surrounding music publishing. While published music had been around for a few centuries, it didn’t develop into a regular industry until the mid to late 19th century. By 1905, music publishing was big; hit songs sold millions of copies of sheet music.

The author, Edward Cutler, was a London attorney during the late 1800s and early 1900s and involved with drafting several British copyright bills. He was also, apparently, an accomplished musician, giving frequent organ recitals during his life. ¹Who’s Who, 1907, pt II, pg 433. Along with the Manual of Musical Copyright, Cutler co-authored A Treatise on Musical and Dramatic Copyright with Eustace Smith and Fred E. Weatherly.

Manual of Musical Copyright covers British law: copyright formalities, licensing, infringement, etc. Obviously, the material wouldn’t be much help to musicians or publishers today, but it is interesting from a historical perspective.

What stands out most to me, however, is how the treatise begins. Employing strong rhetoric, Cutler addresses what he calls the “enemies of monopoly of brain-product”:

(1) There is a certain class of persons, who look upon the protection which the law throws around the offspring of a man’s brain as an unjust monopoly, an invasion of the liberty of the subject. These would-be lavish givers of other people’s property are more numerous, and in some cases more influential, than one would suppose in an enlightened age when, to use the often quoted language of Lord Chancellor Brougham, ” the schoolmaster is abroad.” ²See the New York Times for an explanation of this saying. Their policy is not dissimilar from, though fraught with far wider mischief than that of the opponents of the game-laws. ³According to Dr. Marjorie Bloy, “The Game Laws of 1816 limited the hunting of game to landowners: pheasant, partridge, hares and rabbits. The penalty for poaching — or even being found in possession of a net at night — was transportation for 7 years. The enclosure movement had enabled landowners to extend their parks and warrens, but had deprived villagers of common land from which to net/trap extra meat, to supplement poor diet they could afford on low wages.” The attacks of both assailants of the rights of property like other socialistic believers in the axiom “la propriété est le vol” ⁴“Property is theft” — Pierre-Joseph Proudhon. are suicidal, and would result in the slaughter of the bird which lays the golden eggs. Instead of getting cheap music of a good class, the abettors of the pirates will end by stopping the production of all works of genius and even of popular ones.

(2) This argument is too familiar to need development. If the allies of the notorious pirate of musical publications have minds so constituted that they cannot see the inevitable result of withdrawing protection from producers of “thoughts that burn,” no reasoning of the present writer on the old lines would convince such onesided and narrow thinkers. There is, however, another form of argument derived from the mode in which copyright sprang up; an evolution founded on the absolute necessity for intervention by the legislature to prevent a scramble for “no man’s property,” in the region of idea-creation; a necessity resembling that which gave rise to the laws giving validity to testamentary documents. If it be found necessary in the interests of society, and if it is not a vicious monopoly, to allow a man by making a will to withdraw his goods and chattels after his death from the clutches of the strongest and least scrupulous citizens, there is no impropriety in following an analogous course, and protecting what is often more precious than money, brain product.

(3) Sympathisers with the street buccaneers who carry out the principle “non vobis mellificates apes” ⁵Roughly, “bees make honey not for themselves.” From Virgil. and fatten upon the pastures which industrious publishers have cultivated and enriched by the sweat of their brow and the money from their purse, think that musical copyright sprung into life, the offspring of a few wealthy publishers, nursed by the advocates in Parliament of those interested wire pullers; and that it is only the apathy of an ignorant and lazy public which allows it to live. The reverse is the fact. Topsy’s mode of accounting for the existence of stupendous London, “I suppose it growed,” applies to copyright. ⁶I believe this is a reference to the character of Topsy from the novel Uncle Tom’s Cabin and the resulting expression “it growed like Topsy.” It is not necessary to enlarge upon the state of society prior to the reign of Queen Anne, ⁷I.e., prior to the Statute of Anne, considered the first modern copyright law. when not only the musical art was at a low ebb, but means of multiplying copies of a musical piece were in their infancy; theft was not attractive, street pirates were unknown in those halcyon days. Then men began to suspect that music, following on to the heels of literary composition, had a value, both intrinsic and pecuniary. The theft of a MS. ⁸MS. = manuscript. musical composition containing often matter of national, nay, of European interest, was a crime, and punishable as such; and police-protection was accorded to this sort of property. Then it came to be held that even where a felonious intention or act was wanting, as in the case of an executor, borrower, or other person becoming possessed of, or obtaining access to a MS. by legal means, such person should be restrained by the court from illegally publishing the contents of such MS. or otherwise dealing with it so as to encroach upon the rights of the author; and performance in public, and under certain circumstances in private, of a piece of music or a dramatic piece not communicated to the public by the composer or author, would be subject to the same rule.

(4) The right to recover an unpublished MS. or to restrain publication or multiplication of copies of it or performance, was and is unrestricted in point of time, and remains for ever unless interrupted by some act of acquiescence by the proprietor amounting to “leave and license” to interfere with his rights or some part of them.

(5) These rights to protection for valuable property sprang up by degrees and as it were, spontaneously, and were due to no envious invention of avaricious publishers; they took root in the natural sense of justice and necessity, to avoid confusion and literary anarchy. The same deep-seated motives caused the legislature to intervene, and to crystallise the unwritten law by several Statutes, which the writer abstains from referring to in detail, as the measures in question were all repealed, and the whole copyright law relating to Great Britain was dealt with (or purported to be so) by the Act of 1842 herein referred to as “The Copyright Amendment Act.” ⁹The Copyright Act 1842 extended copyright to musical compositions in England. This Statute was due to the unceasing labours of the large-minded and classical Serjeant Talfourd, ¹⁰Thomas Noon Talfourd. and as will be seen from his published correspondence, was free from the taint of any editorial intrigue.