Copyright, "the Commons", and intellectual property rights

Taking off on a thread over on thesession.org (Tunes with a life of their own):

There's an uneasy relationship between the modern concepts of copyright--under which rights to traditional music are administered in the modern world--versus the archaic concepts of "the Commons"--under which most traditional tunes were created and consumed.

In the modern world, virtually anything is presumed to be or treated as if for sale. If no "ownership" of an object, idea, or creative art work is established, it is vulnerable under the modern laws of copyright to anyone who wants to come along and legally assert ownership.

In contrast, up until the period of "enclosure" (in Western Europe roughly the middle of the 16th century) any land not legally claimed by a single individual (either royalty or nobility) was deemed to be held "in Common": under joint ownership by all the members of a community, subscribing to a loose and unwritten but real set of shared rules about shared use, and providing grazing, raw materials, forage, hunting, and so on. The idea of a "Town Commons" (very familiar in New England, where I'm from) was of common grazing land to which all had rights and for which all shared responsibility.

This has led to such massive miscarriages of "justice" as pharmaceutical companies copyrighting the molecular formulae of Amazonian plants or the DNA of indigenous peoples. But that is the nature of a modern technological culture obsessed with individualism and individual ownership: because the plants or peoples don't operate on the modern principles, they are vulnerable to having their own "common property" stolen right out from under them. Obviously there is a gulf of understanding between modern ideas of ownership versus historical ideas of the commons.

This gulf is present between understandings of creative ownership, as well. Most of the tunes most Irish musicians play were composed in the period before modern copyright, and no traditional player would have wanted or needed to assert his or her "ownership" of a specific piece of music.

Unfortunately, in the modern world, where the laws of private property hold sway, this means that any tune of previously-unclaimed ownership is vulnerable to a kind of "land grab": anybody who comes along and wants to assert his/her copyright in the absence of any prior right can do that successfully. Certain eminent Irish musicians have figured out this gulf and have, very greedily, attached their own copyrights to tunes written long before they were born.

On the other side of this, there are people (particularly well-represented in the overly-verbose and -opinionated medium of the Internet) who want to deny the rights of individual creators to their own intellectual property. If someone does write a tune, or a book, or record a song, then that person is entitled to say "look, if I hadn't come along, this creative object wouldn't exist. So I get to have some say in how it's used, where it's published, or whether it's OK to file-share it."

Anybody who claims that an artist has no right to specify or limit how/where his/her own creation is used hasn't spent enough time actually creating things to recognize just how hard it is.

There have been some very subtle, well-informed, and closely-argued discussions of this on Irtrad-L and at Anthony McCann's website

By the way, in reference to the discussion thread cited above: Kerri Brown is right.