Download Ulrik Volgsten

Emotions, copyright and the socio-ontology of music: glocal culture vs world
trade
Paper presented at the conference The Emotional Power of Music, Geneva, june 2009
Ulrik Volgsten, Gothenburg University
In this paper I will show how research on music and emotions have consequences for — and
therefore should be paid attention by — such nonmusical areas as economy and law. I am
particularly thinking about copyright. This means that I will touch upon research from fields
as different as the history and sociology of law, the history of mentalities, aesthetics and
ontology of music, so as to finally ground my argument in the psychobiology of emotions and
music. The motivation for this multidisciplinary stance is my own interest in music. both as a
passionate listener, as a musicologist, and as a cultural theorist. I feel a deep concern for the
ongoing development of music, which under the rule of global copyright regulation turns
music from a cultural expression and activity into an investment object for a handful of media
conglomerates, which in their turn are more aptly described as a ”rights industry” (McMillan,
2003). I Start with a brief description of the problems that copyright involve, especially as
these are regulated by the global copyright agreement of the World Trade Organisation,
named TRIPS (Trade related aspects of intellectual property).
There are many types of copyright, and I will not mention them all. According to the
forerunner of the TRIPS agreement, the Berne Convention, composers’ rights are divided into
an economical right to remuneration (§11bk) and the moral rights to be credited as composer
of the music, and prohibit changes and revisions of one’s music. The economical right is
alienable, the moral rights are not. That the economical right is alienable often has the
consequence that it is signed away by the composer and ends up in the hands of the industry.
Economic rights hold until 70 years after the death of the composer. Consequently, this means
that composers cannot expect full remuneration until 70 years after their own death. The
argument for this construction is of course that the 70 years extension of the right makes the
composition (or perhaps better, the composition-as-right) a more attractive commodity on the
market of rights, and that the composer can get a better price for his composition (-as-right).
Whatever we think of this, it shows that the copyright system is constructed to facilitate the
alienation of rights from the composer to the industry. More important in this regard is the
TRIPS agreement, which explicitly denounces any moral rights of the composers (art.9 §1).
Economical rights are the only rights that count on the global music market, and they are not
supposed to stay in the control of composers.
An even more serious problem with today’s copyright law is its threat against the right to
freedom of expression. An increasing number of legal cases shows that charges of plagiarism
are levelled against use of musical material which in the past would have counted as basic
musical building blocks, as musical material. Whereas charges of plagiarism in the past
involved entire pieces of music, composers today risk being accused of plagiarism when using
short phrases that may have similarities with other short phrases in copyrighted compositions
(Demers, 2006).
A related problem that should also be mentioned is the increasing references to artists’
trademarks. In the US, courts have judged it criminal to imitate the vocal styles of Bette
Midler and Tom Waits, since their vocal styles are regarded as their trademarks. A recent case
of plagiarism in Sweden was likened to trademark infringement by the supreme court
(Edlund, 2006). The problem facing today’s composers is a diminishing availability of
musical material, which goes together with a growing anxiety to use material that may be
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copyrighted already. If you aren’t tied up to a company powerful enough to house its own
team of lawyers, the mere risk of being accused of plagiarism, of being sued and having to
pay the expenses just to show you’re innocent, will be enough for many to refrain from using
musical material with the slightest reminiscenses of anything familiar (Klein, 2000). Anxiety
of influence ordains originality but the copyright side of the coin burdens creativity with a
countervailing cautiousness.
What this means is that the increasingly aggressive copyright regime, as codified in the
TRIPS agreements ”enforcement measures” is on the dangerous way of turning copyright into
a communication right.
Finally, that copyright controls musical expression has consequences not only for composers
and musicians, but also for the listener, for culture at large. It is often said that our identities
to a large part equal the narratives that we weave about ourselves. These narratives aren’t just
made up of words. They may also include such nonverbal signs or symbols as music (Shaw,
1994). When these signs and symbols become immaterial, communicated through digital
media, copyright becomes a threat against the ”free development of personalities” that are
stated by the United Nations’s universal declaration of human rights (§22). Copyright
becomes not only a communication right, but a right to to our private and collective identities,
memories, a right to culture in the widest sense of term.
Copyright thus affects much more than the economic right to sell musical commodities. As
we have seen, the law is constructed to channel these rights away from composers, and into
the hands of the industry. The TRIPS agreement poses an even deeper problem, since it
doesn’t permit any changes whatsoever in the construction of national legislation that would
go against its paragraphs. As a compulsory agreement for the members of the World Trade
Organisation, the TRIPS threatens any nation who does not comply to its rules with sanctions.
If a country like Sweden should want to change its copyright law in a more liberal direction,
the country would face the risk of being sanctioned by other members in export fields other
than music, such as steel or paper. The TRIPS agreemement thus backbinds democratic
legislation in cultural matters on the national level (and of course also on the international
level).
How did we get into this situation, and how can we get out? I will now sketch an argument
that strikes against the very ideological basis of the TRIPS agreement, at the same time as it
highlights the public legitimation of copyright. The role of emotions in this argument will
become clear in a little while.
The TRIPS agreement has been duly criticicized for using a rhetoric akin to that of natural
rights to property (Oddi, 1996). The preamble of the agreement refers to its members [I
quote:] ”recognizing that intellectual property rights are private rights” [e.o.q.], and [I quote
again:] ”desiring to reduce distortions to ... international trade” [e.o.q.] (italics in original):
the members of the TRIPS thus ”recognizes” the undisputable fact that rights are private,
therefore ”desiring” to overcome the distortions to international trade that might exist. Further
down the preamble also states that its signatories [I quote:] ”recognizes ... public policy
objectives of national systems for the protection of intellectual property” [e.o.q.], which
means they recognize that there may be national public interests underlying the law, such as
promoting development, knowedge and education. However, such non-private interests
obviously have nothing to do with rights. Thus, what seems to be fairly neutral formulations
of the TRIPS turns out not to be so at all.
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The rhetoric has a history dating back to the 18th century, and John Locke’s famous argument
for the natural right to property. Particularly the way Locke’s argument was adapted by
British printers when they tried to take control of composer’s right to printed scores. Whereas
Locke was concerned with the ownership of material products, that were brought out of
common natural resources through manual labour, one can say that the British printers
transferred the argument to the objects that came out of the artists spiritual labour, invested in
a common cultural resource. It is important to note here, that the object resulting from this
sapiritual labour was the material score. Immaterial objects where unthought of; they belong
to the future. Summarizing grossly:, in the 18th century statutory laws ruling the right to copy
replaced feudal privileges. In the 19th century laws governing ownership to the printed scores
where formulated, whereas we have to wait until around the turn of the 20th century before
fully fledged authorship laws enter the scene.
The ”authorship rights” of much of continental Europe and Scandinavia grew out of
discontent with the workings of the earlier laws of ownership rights to printed texts and
scores. These ownership rights were substituted for by laws referring to musical ”works”.
Thus, today’s copyrights are not property rights according to the laws of many of the
members of the World Trade Organisation.
Nevertheless, the public legitimation of copyright seems to rest to a large extent on an
unarticulated notion of the musical work as an immaterial object. An immaterial object that
one can own and which can be stolen. In Sweden, for instance, there has been frequent talk in
the mass media about music as one’s ”property” and plagiarism and piracy as ”theft”. For
instance, the secretary of the Nobel committee speaks against the public-domain defenders’
”attacks on artists’ property rights”.
In fact the concept of an immaterial, or idealistic work of music has been regarded as highly
problematic in the juridical doctrine of many countries. The sparse use of the term ”work” in
law texts (including the TRIPS) is a testimony of this. In Scandinavia a 25 year long debate
about the status of the object of protection of the law — ”the work”, that is — ended in a
consensus to treat the ”work” more or less as a useful ”fiction” (Strömholm, 1970;
Koktvedgaard, 1965). But this was not a reaction against an established view acknowledging
immaterial works, it was a reaction against a situation where performance rights on the one
hand and ownership rights to printed scores on the other, both referred to a ”work”, a juridical
situation which seemed to call for an immaterial object. But the ontic commitment to
immaterial works has always been questioned in some way or other.
Despite claims of a historian such as Lydia Goehr (1992), theories about idealistic works are
virtually non-existent in the 19th century — in law, in aesthetics as well as in public discourse
(the names Goehr mentions in this context are, quite notably, Schoenberg and Ives, both as we
know composers of the 20th century).
Theories of immaterial musical works don’t show up until the 20th century, with Roman
Ingarden’s ontology of musical works as a pioneering work (Ingarden, 1986). A Babbitt’s or a
Boretz’ rejection of sounds and audiences are 20th century phenomena, symptomatic of an
art-for-art’s-sake version that has slowly made its way into the layers of collective mentality
as a belief in the ”immaterial object” existing independently of any musicians, audiences,
independently of being played at all. As such today’s notions of immaterial objects as
intellectual property has very little in common with, for instance, a Hanslick arguing for
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tönende bewegte formen. The idea seems not even to have occurred to an idealist such as
E.T.A. Hoffmann. Being also a proffessional lawyer, Hoffmann argued in a legal case against
an unauthorized piano arrangement of Weber’s Der Freischütz, that musical compositions
cannot be ”extracted” from the material print, the way books can (Kretschmer and Kawohl,
2004). This was in 1823.
The rhetoric that ties property and work-as-object together is a child of the 20th century,
however nurtured by the familiar genius of romanticism. It is an ontological metaphor we
have come to live by (Lakoff and Johnson, 1980), which has served as a legitimation for
copyright law for almost a century by now.
Although it has been a problem child in juridical doctrine, it seems as if the idea of the workas-object hasn’t been sufficiently challenged until digital technology brought out its
informtional aspects in the open. The most serious rejections of the legitimacy of copyright
law comes from the practice of file sharing.
I have mentioned Ingarden’s philosophical theory of musical works, and a discussion of the
various ontic commitments to the work of art elaborated by more recent analytic aestheticians
would certainly be in place here. An idealistic work with multiple instantiability would of
course be manna for any copyright proponent shying from Occam’s razor. But since a
refutation isn’t necessary for the final point that I would like to make, I will leave the
ontology discussion aside.
I will now present an argument against the natural-right-to-property assumptions of today’s
global copyright regime. An argument against the view that assigns a natural right exclusively
to one and only one party, the composer (who is thereafter expected to sell this right as a
commodity). Paradoxical as it may seemat the outset, this argument may in the end prove to
be a support for the composers’ rights, both moral and economical.
Whereas the various ontological theories of the musical work usually end up with some idea
of an abstract achronic structure as the identificational criterion for the musical work , they
wisely do not thereby claim to say anything about the nature of music itself. If we consider
what it takes to turn an abstract achronic structure into music — or perhaps the opposite is
easier to imagine: what do we subtract when we reduce music to an achronic structure (and it
doesn’t matter whether we are platonists, creationists or fictionalists here)? If we consider this
I think we can come up with an argument against the hard-core commodification of music
that the TRIPS agreement fosters. And this is where the emotions enter the stage.
The argument starts with a paraphrase Lockean property rights parlance by claiming that
since the audience invests an emotional labour when listening to the sounds of music, this
audience, each and every listener, has a natural right to it. Although there is an obvious irony
in the reference to natural rights here, we shall see that it is not empty rhetoric. This will
become clear when we see that listening is not a question of mere consumption. Even
distracted, non-contemplative listening (verstreuung) cannot be reduced to mere consumption.
The emotional investment that goes into listening is actually even more personal than the
manual labour that Locke once had in mind, as my rather inclusive use of the term
”emotional” will make clear.
But let me first list some varieties of listeners’ emotional investment in musical sounds as a
means of comparison. Hardly anyone would contest that music can be expressive of emotions.
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At least the music we care for. This has led to a growing litterature on music’s capacity to be
expressive of emotions.
According to one explanation music is expressive of emotions because it arouses the
emotions in the listener who thereby take the music to express them (Matravers, 1991;
Radford, 1989; Ridley, 1995). This view has been criticized since music does not seem to be
capable of arousing in the listener emotions as specific as the music itself is expressive of —
if it arouses any emotions at all. And since this version of ”arousal theory” does not require
any investment from the listener, it wouldn’t support my argument anyway.
According to another theory listeners experience the emotions music is expressive of through
an act of sympathy (Levinson, 1996). We animate the expressive sounds and sympathize with
them as if they were another person’s expressions. As Jenefer Robinson says, we are
”emotionally involved in listening to the music” (Robinson, 1994). According to another
version of this theory, we project ourselves in an act of make-believe as the subject
experiencing the emotions expressed by the music (Walton, 1994). The emotions that music is
expressive of in these cases are thought of as either being similar to emotive human
expression (vocal and/or gestural), or signs of more or less established conventions.
Here we have a clear case, then, of listeners investing emotionally in musical sounds.
Listeners listening with sympathy or make-believe to music indeed invest personal qualities in
the music they hear. However opponents to this theory have objected they never ever
experience feeling the emotions that they hear the music is expressive of. At most they are
moved by music’s expressivity (Kivy, 1989). So in the end, the sympathy and make-believe
theories would only give partial support for my claim.
A third theory suggests that expectations of the unfolding of music, and their fullfillment or
non-fullfillment, are cases of real emotions felt while listening (Madell, 2002). Expectations
equal desires, and the object of the desires are the fullfillment of the expectations. Its not just
a case of mood induction by the music, the theory claims. The emotions felt in this case are
the result of a cognitive investment in the music one hears and the desires that equal one’s
expectations. However, this theory requires cognition and categorization of musical sounds
prior to the emotional investment, which means that the emotional investment may in the end
be dismissed as a contingent attitude displayed only by a few cultivated listeners.
Therefore, I will draw my strongest support from a particular notion of feeling which is highly
specific, since it draws its phenomenological identity from the very situation wherein it is
caused, whereas it is non-specific in the sense that it doesn’t require any cognitive investment.
It doesn’t require previous categorization to fit the stimulus; rather the contrary, its an
emotional dimension both prior to and necessary for categorization.
This is an emotional dimension that has been desscribed as fundamental in the human child’s
earliest communication and socialisation. Its the pre-verbal and pre-categorical level of
communication that is exemplified in the exaggerated vocalizations by parents to their babies
that the psychologists call motherese. Basically its a communication of feelings, or as these
feelings also are called affect. The prosodic contours of the father’s talk to his child has an
affective impact on the baby, the contours are felt as they are heard. Likewise the baby
responds with non-verbal vocalizations that are felt by the parent and only subsequently
interpreted as conveying information. This non-verbal, affective communication usually
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follows an intrasubjective ”dialogical” pattern rhythmically regulating the ”calls” and
”responses” (as it were) from parent and child. This dialogical pattern requires an affective
attunement on the part of both. One senses the unfolding of the other’s prosodic contour and
anticipates its phrasing off, whereby one’s own response may catch on (Stern, 1985).
There are many aspects of this theory of affective communication that are relevant for
music, and I have discussed them at length in my doctoral thesis (Volgsten, 1999), and
summarized them in the anthology Music and Manipulation (Volgsten, 2006). Here I shall
limit myself to the mentioning of some of its most intriguing aspects. First, there seems to be
an innate preference for certain ”well formed” prosodic contours. The child learns to identify
its parent’s voice on the basis of his or her personal deviations from such well formed
contours, ”stylistic” traits, we may say, that not only are affectively felt but also triggers
positive or negative feelings (Trehub & Trainor, 1990; Trehub & Unyk, 1991). Moreover,
certain contours seem to be innately connected to certain response patterns, such that falling
speech melodies soothe, rising melodies attract attention, bell-shaped melodies maintain
attention while unilevel melodies discourages ongoing behaviour (the effects are similar in
both American English and Mandarin Chinese, see Papusek, et al. 1991).
As the child notices that it can control some affective reactions but not others, it successively
develops a sense of self in dialogical relation to others — those others that are in partial
control of its affective life. The child thus comes to project something onto the other which is
not there objectively, namely subjectivity: a subjectivity which is only there as a result of a
dialogical interaction based on an emotional engagement through affect attunement (Stern,
1985).
Now, the afffectively appreciated prosodic contours just mentioned, I claim, are a kind of
proto-music. They require an emotional engagement — affect attunement — in order to
become significant. And they are the most basic type of social engagement that human beings
deal in.
The way this proto-music is exploited and developed into the cultural expression that we call
music I explain with reference to yet another psychological theory, a theory that
describes the human capacity for categorization of sensory phenomena as evolving from a
basic level (Rosch, 1981). Simple vocal contours are the primary units at this basic level of
categorization. Beginning at this basic level, categorization can extend to more superordinate
levels by means of metaphor (as for instance Spitzer, 2004, has suggested), metaphors some
of which even requiring verbal categorization (as I myself have shown elsewhere [1999,
2006]). In addition, categorization can be extended ”downwards” to a subordinate level of
pitch or rhythmic detail.
Turning back to the copyright problem, my earlier claim now has a much more substantial
backing: since the audience invests an emotional labour when listening to the sounds of
music, this audience, each and every listener, has a natural right to it. A right which needs
qualification in relation to the composer, no doubt. But a right all the same — if there ever
was a right to music. The important point, however, is that this shows a Lockean inspired
argument cannot support exclusive ownership claims to music. The audience cannot be
reduced to only a consumer obliged to pay.
But how can I say that the emotional engagement of the listener is more than simple
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consumption? After all, food is not nutrition until we digest it, but this does not mean that we
have a natural right to potatoes grown by somebody else. Or should the digestive labour we
invest mean that the lunch we eat ought to be free? How can I say that the emotional labour
invested in musical sounds is more than (or different to) what it takes to eat a big meal?
My answer is that whereas in food the nutritive components are there whether we eat the
potato or not; in sound there is no music until a listener adds it, appreciates it, passes it on to
others, through affect attunement (the first listener may be the composer, playing or
imagining). The music is added to the work as the musicians follow the composer’s
instructions (more or less, pace Goodman). The music is added to the work as the audiences
hear what the composer intended (more or less). And, as Kant would say, we expect others to
join in with our judgement.
Music, in other words is social. Music is social. Take away the affective attunement to music
and there is no more left than a Mozart effect to trigger some mice in a maze (cf. Brown,
2006). Music certainly is more amazing than that. Music is a human cultural artefact, and its
communication — its potential for human communion — should not be restricted by any
global trade agreement. Thus my final recommendation: give the TRIPS agreement a one way
trip to the bin. Bring music back from the market of world trade, to where it belongs. Bring
music back to the local and global cultures of the world!
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