Facts/Ethics regarding Borrowing and Lending Choral Music
This recently-implemented policy on borrowing requests has its roots in a discussion which took place in early 2000 by a discussion forum created specifically for that issue. The forum was of a diverse, international constituency. Representatives from the Music Publishers Association, academia, and the publishing industry as well as professional composers and arrangers took part in the discussion. Highlights are shown below.
Some of these are "rental" agencies which charge per piece; others have membership fees; still others charge nothing except for expenses such as shipping.
And now, a word from a lawyer...(sent us by one of our users, unsolicited)
The distinction is that, unless the terms of the sale or license prohibit it, the lending of originals is part of the "Right of First Sale"--the bundle of sticks one acquires with a valid purchase of copyrighted materials, and the lender doesn't have access to and use of the materials during the term of the lending. Photocopying, except in rare instances, is specifically pohibited because it enables the evildoer to avoid paying for one or more copies, deprives the IP Owner of royalty or revenue, disturbs the Objective Moral Order of the Known Universe, provides a windfall to the piggy copy services, yada yada.... So the edict: "Neither a borrower nor a lender be." really is: "You can be a borrower or a lender (at your own risk of ever seeing your material back), but don't be a thief." OR, "Pigs get fat; hogs get slaughtered."
R. Stephen Hansell, Attorney at Law and Patent Attorney
As the publishers, agents and representatives of the songwriters who are losing income from the practice of borrowing we feel ChoralNet has an ethical responsibility to discourage rather than facilitate this trend that is having a direct negative effect on the creators of the music we all use. We recognize that this issue cuts to the core of ChoralNet's mission. The question that needs to be answered is: Is the purpose of ChoralNet's List/Forum to support the music community at large by supporting both the users of music and the creators of music, and therefore a commitment to supporting the art of music, or is it a forum free to be used by others to grow a practice that is reducing the income and incentive for all authors and composers of choral music?
We are not proponents of censorship, nor do we claim that lending music is against the law. Our position is to appeal to ChoralNet to define itself as an advocate of responsible, positive practices that will benefit all members of the music community. Music is an art and we believe art serves all of us and our society
The MPA maintains a website with essential information regarding copyright law, mechanical and other licensing issues, out of print material and other valuable resources. See: http://www.mpa.org/crc.html.
These are excerpts from a discussion of an ad-hoc committee formed to study the subject of music borrowing.
A compilation of the entire discussion on borrowing may be obtained from the ChoralNet's former Vice-President for List/Forum activities, Tom Merrill. Send your request using this link.
Here are some highlights:
From David Griggs-Janower
I find myself completely in agreement with Charles Fuller. Borrowing is not illegal and we should not attempt to regulate it, whether we can or not. This is an open forum.
As to requests for single copies: we cannot regulate the behavior of list members. We cannot assume that someone borrowing one copy is planning to duplicate it, nor can we assume they are using it legally. We just cannot assume anything about someone else's behavior. Someone earlier said that there are plenty of places on-line where on can review music. This is a generalization that does not hold true for much music. I've been trying to get a Brazilian piece for several months to examine, and finally asked St. Olaf to lend me a copy. I can't tell from their marvelous CD whether the piece will work for my small chorus or not (I wish I could always tell from CDs!), and I need to see if before I invest several dollars a copy in purchasing it. How would Anton Armstrong know whether I plan to duplicate it or buy it? I don't want him guessing about my morals and I don't want to guess about his, and I don't think the list should do this either. And this piece is not on-line (I think!).
I have two college choruses, one about 90, one about 25, and an annual budget of $500 (and that's supposed to include soloists as well as music!). At an average cost these days of $1.00-$1.50 per octavo, how soon would I use up my entire budget if I purchased every piece I need? A 15-minute concert with the large group would do it for the YEAR! And this says nothing of the need for a major work. When the symphony says they'd like to do soemthing like Durufle or Faure, a terrific experience for my students, I have to find the music somehow, if we don't already have it.
My choice is to purchase as much music by living composers or arrangers (or editors, Marty!) as possible and to borrow war horses when possible. This both supports living composers and also tells publishers that I support their publishing of living composers. There are probably enough choral libraries in the U.S. with scores of Messiah and Verdi Requiem that they never need to be printed again, and that effort and expense on the publishers' parts, and that money from choruses, could be spent on ten octavos of living composers/editors.
Let's think of this for a minute. Let's say a publishing company has 50% of their stock in Messiahs and Verdis and Elijahs, and 50% in the music of Gwyneth Walker and Stephen Chatman and Imant Raminsh and Gorecki and Tavener. And let's say that everyone on choralist borrows their Elijahs and Messiahs for five years. Won't this company move more and more of their business into what's selling, into these composers?
But this merely reflects my own biases. If I chose to spend my meager budget on war horses and borrowed other works, it still keeps publishers in business, doesn't it?
As for renting music, I do this also. I am able almost to double my $500 with rentals of major works each year. Again reflecting my own biases, I choose to respond to requests for major works, and charge something like a buck a copy plus shipping. I then use this money to support living composers. And I hate the idea of my Messiahs getting dusty...
Most of us can't perform all the music we'd like to with our limited budgets, epsecially as we seek more and more music from across the world. If we can stretch our budgets legally, why shouldn't we? My alternative, if I couldn't borrow and couldn't rent, would be to pull out the same music over and over, and I would have little opportunity to explore music of living composers or music of other cultures, since it would be unaffordable.
I think the existence of choralist promotes borrowing of music, and I'm in favor of it!
From John Howell
Thank you, Monica, for getting the ball rolling.
First, I have no strongly-entrenched feelings on one side or the other, and therefore can follow the arguments on both sides. But my immediate reaction is that Monica's remarks start from the wrong premise. Since it is quite clear that it is perfectly legal to lend and borrow property which you have purchased, be it printed music or a stepladder, and since there seems to be no moral question involved, she approaches the question as an ethical matter. Fair enough. Maybe it is, but that point is precisely what needs to be discussed, and not accepted a priori as an axiom.
The reason I believe there is no moral question here is that this is a matter of business. It is a matter of the marketplace, and is ultimately governed by the ancient principles of supply and demand. We, who use the product produced by composers, arrangers, and publisher in the course of our daily work, represent the demand. The publishing industry represents supply, because for the time being they control the all-important matter of distribution. It is up to them to supply, in terms of both product and service, what we need. We are free to assess the products that are available in the market and to choose those which meet our present needs. Cost is a factor that must be considered, and will determine whether it is even possible to consider a particular work or rental. Availability is equally important, because if product is not available when we need it, the supply side loses our business. Suitablility is important (i.e. is the piece available in the voicing we need, is the accompaniment within our capability, etc.). And of course quality is important, and that includes the quality of the music but also the quality of the service and of the physical product offered by the publisher.
OK, none of that has anything to do with renting or loaning, but that's where we have to start. Then comes the real ethical question: What do we owe to the publishers as a matter of professional and cultural ethics, and what do they owe us?
I would like to suggest that what we owe to them is NOT to ensure that they will make the profit they would like to make (yeah, I know, it ain't all that much!!). Yes, it is to our advantage to have publishers stay in business, and yes, it will hurt us if they go out of business, but that is not an ETHICAL matter as much as a practical one. It does not help us if poorly-managed publishers who do not provide good product and good service stay in business, because they are not providing what we need to begin with.
What IS our ethical responsibility is not to break the law, to purchase rather than to photocopy without permission, and to ask permission if there is some need to photocopy. And the ethical responsibility of publishers is to keep music in print, to make it available in a reasonable way if it does go out of print, and to return the copyrights of out-of-print music to the composers or arrangers to allow them to attempt a different mode of distribution. Note that this is not a LEGAL responsibility, but I do suggest that it is an ethical one.
As for renting or loaning, I believe it is legal, it is moral, and it is ethical. It won't happen, just as photocopying won't happen, IF the publishing industry provides what we need, when we need it, at an affordable cost. It won't happen because it's just a whole lot easier to buy than it is to go through the hassles of borrowing and shipping and returning and paying for lost or damaged copies. To imply that it is unethical for individuals to loan or rent but ethical for a rental business or library to do so is simply silly.
What seems to have been lost track of in the comments made so far is the simple fact that payment for legally purchased music represents only one of the several copyright rights, and only one of the royalty payments involved. Any performance of a copyrighted work should also take place under license, and that represents an additional royalty payment to both publisher and composer or arranger. Multiple performances from a single set of parts--which is what this discussion is about--continue to generate additional royalty income as long as the piece is deemed worthy of performance. Mechanical licenses for music that is recorded represent still another royalty payment for publishers and composers or arrangers. The premise that publishers live or die on original sales of their product is a little too simplistic to accept.
Which brings me to my final comment. I am very much afraid that what is being discussed here is a simple matter of censorship, and I am utterly opposed to censoring legitimate requests for legal activity that is valuable to our colleagues in the choral business. If there are activities that should be actively discouraged they include illegal photocopying, performances without payment of royalties (including county, district, and all-state festival performances), and distribution of recordings without obtaining mechanical licenses and paying statutory royalties (including county, district, and all-state festival recordings).
Let's concentrate on condemning what is illegal and really does hurt publishers and composers, not on what is legal and legitimate.
This humble (small) publisher would like to weigh in gently on the subject. Consider it both personal in content (as owner of the firm) and business (as I think i can speak adequately on this one for my staff).
As the copyright law specifies, when one buys a product covered under the law, one also gains the right therein to resell, give on to another, loan and rent that product. It is legal. It is therefore intrinsically in itself ethical when one exercises these rights. Although our inner publisher selves will tend to grumble, it is only a fleeting moment because extended concern over the issue is a collosal waste of our time.
But it also should be noted that performance rights (fees when appropriate), mechanical rights (when recorded to any medium), synchronization rights (for film and video), and the right to reproduce, sell and distribute the product is not included. I mention this because it is often overlooked (conveniently) by those libraries who rent from legally bought libraries, and I have found many to be surprised that these things are not included in the rights from purchase.
Anyway, although we are intensely aware of the sensitivities about this issue on all sides, especially from the publishers, we think that it would be unwise for ChoralNet and any of its constituencies to sensor postings on this issue.
Permit me to comment on behalf of my own publishing firm in regard to John's fine posting below. Although I cannot speak for other publishers, I certainly can speak for ECS Publishing and its divisions.
> Fine. Christine, let me ask whether the members of the Music Publishers'
E. C. Schirmer Music Company and Galaxy Music Corp. throughout its long history
> 2. To archive and make available reasonably quickly at reasonable cost
Both ECS and Galaxy have been doing print on demand since 1978 when photocopying became feasible for print on demand. We continue to do so, and will continue to use new technology for this purpose. All of our current copyrights are available at a cost which is basically break-even. What might be considered "reasonable cost" is always slightly different between publisher and customer, especially when middle-men who recieve discounts in order to resell are involved. But we try to keep it as low as possible.
> 3. To return to the composer, arranger, or editor all copyrights of music
Galaxy Music Corporation's contracts throughout its history have mandated return of copyright if a work goes out of print and the composer wishes it to be returned (sometimes they don't). E. C. Schirmer has had this policy in place since 1976 even though its contracts do not mandate it. Many composers, both famous and not so famous, will testify to our strict adherence to this policy. In short, it is a policy designed to do everything in our power to facilitate performances, not prevent them.
> These are not legal requirements, either, but they would mark a major move
Well, sometimes it is a legal requirement (as I have stated above). But other times it isn't. And I have to agree that ethical behavior on both sides of the supply/demand force does require both sides to participate. ECS and its publishing divisions always has to the best of its ability and will continue to do so. That's one of the reasons we are still independent.
What we would like is to be recognized for what we do rather than (as is so often the habit) to be bashed along with all publishers just because we are a publisher. And I suspect personally that there are others among my publishing colleagues out there who could and would concur with the above comments.
I would like to suggest that most of the concerns that have been brought up in this discussion have their root in the current, somewhat extreme, and fast moving changes that are gripping not just the publishing industry, but the whole arts/entertainment world, and thus a good chunk of the educational world as well. Some have alluded to this in their comments already. Techological advances, cultural changes; the merging of art and commerce and entertainment (including sport); the remaking and consolidation of all of the businesses serving "culture"; the availability of sound, vision and sense at every turn of our lives; the lack of and fear of silence and the clearing of our senses; --- all of these things are affecting not just publishing, but the style and content of art/entertainment. It is understandable that older folk who have stood on certain "standards" would be frightened and maybe even confused about these changes. I sense that the younger folk have a different outlook because they have grown up with a different model. Maybe our "ethical" concerns about borrowing music are only a little tip of a very large iceberg, and maybe not even the most important ones confornting us.
Looking at larger, related issues,