Dóbre ráno, dámy a pánové:

A wonderful poem by Theodor Fontane [i] (from 1889) describes exactly the situation we are in actually. Old Herr Ribbeck auf Ribbeck has a big pear-tree in his garden. As the pears ripen in autumn, he cannot eat them all in his own. So he offers a pear to very passing-by schoolboy or girl. When good old Herr Ribbeck dies, he decrees that one pear should be put in his coffin. His son was less generous. The pears were his, no pears for the kids anymore. But: after some years a pear-tree grew out of the grave of the old Ribbeck and after some time the kids could eat their pears again.

Let us translate this parable into our own problem: The old man Ribbeck and his pear-tree stand for the free reception of music until about 1650. With te upcoming opera industry – and from the 18th century on the concert – people payed for what was a cultural service to them. The avaricious young heir Ribbeck only came up as “music industry” at the beginning of the 20th century. That was the moment, when music changed from being a cultural service to become a commercial commodity. This is the period from the invention of the grammophone record until the cd and the internet: the rule of industrial avarice at the detriment of music and its composers. Actually this industry – especially the big “Majors” – is standing at the edge of its grave, – look at Sony/EMI,s gigantic debts of billions of Euro’s. Whilst they stand to arms against millions of young, so called ‘illegal’ downloaders (and more and more composers too!), they have not understood, that the pear-tree has already grown above the grave of the good old Ribbeck: millions of kids “download” their fruits there, more and more composers irrigate the new tree.

But the young Ribbeck – the music industry – has not given up his struggle. He still wants to press money out of every pear, but he does not understand that another pear-tree already sheds its fruits elsewhere, within new economic configurations. During the entire 20th century, music industry has struggled for the conquest of the tree upon the grave of the late, good old Ribbeck. Wasn’t that young Ribbecks father? Had he not a neigbouring right on his fathers grave and the pear-tree? Assisted by armies of lawyers and lobbyists. music industry finally has achieved to usurpate more and more “neigbouring rights” – to the detriment of the public, the composers and other authors. Where music industry achieved this goal with an increasing brutality, the new rulers of the internet – especially Google – try to step in the footprints of music industry by much more refined – and thus: politically more dangerous – methods.

Since “muzak” started his background-music enterprise 90 years ago, music industry has made profits of trillions of Euro’s by lowering the value of music to nearly zero. Do not be astonished: this was the most efficient way to intrude every house or public place. Art music degenerated into entertainment and finally entertainment degenerated into an acoustic narcotic drug. We have reached the lowest point of music history since Shamanism and we should not be astonished that the download-kids have completely socialized within this so called culture-without-value. It is only if we get rid of this cancerous tumor of music industry that we can start to rebuilt a healthy music economy to the benefit of composers and their listeners. Who is really longing for Smetana in the hotel lounge or Karel Gott on the toilet? You hate these acoustic intrusions? Fine, but you have to pay for these unwanted acoustic harassment, even if you are not aware of it.

While pushing down the value of music, music industry raised its price. At this they followed one of the basic rules of modern “knowledge industry” which says, that the more you disseminate knowledge, the lower its price will be. Instead of laborious earning 100 € they preferred to earn 1 million €cent (=€10.000 ) without extra efforts. Internet – so they imagined – would make this miraculous music&money-increase possible. When they started to understand that the internet was not their private property but a rather free place, they tried to stop the so called “theft” with armies of lawyers and law-suits; remember the RIAA-persecutions in the United States [ii]. The problem is a historical and social one: while young people are driving on a modern highway, the robber-knight music industry seems still to live in the middle ages and wants all passengers to pay a street toll every 500 meters. What a historical error, which certainly will cause the death of “classical” music industry. An economy built upon the law of averages is a fake economy which has lost contact with producers and consumers. By the way: who invented the cd-rewritable, the open tomb of music industry? Not the hackers or the downloaders, but the industry itself, before all Philips and Sony!! Moreover: when you steal an autocar, it is away. If you “download” a music-track, you steal absolutely nothing, because the track remains on its original server. Making a photo of the “Mona Lisa” does not mean, that you have stolen the original…

During many decades, the Authors-Right-Societies have been to a certain extend the extension of the music and media industry. Whenever a new technology came up, this industry urged for new – lower! – tariffs or new conditions (always to the detriment of the authors). Look at the shameful author’s deal for a sold CD: from every sold exemplair all the authors on that CD get less than 10%. Even the retailer gets more than twice of that amount! Though nobody would be able to sell one single exemplair without music on it.

As if Authors Rights Societies were a kind of auxiliary police of music industry, they keep their own authors under control. More and more Societies oblige their members – especially those who are involved in electronic music – to declare all “samples” of other composers they have used. The answer of a young German composer [iii] to GEMA was extremely funny: He put 70200 samples in a tiny composition which only lasted 33 seconds. He filled in the 70200 declaration forms and transported them to the GEMA building, where the functionaries became desperate: they never could process all these forms. The average sample of that piece would last 0.00047 seconds. Yet the intention is dangerous: Authors Rights Societies abusing legal provisions to frustrate the creative process,. These obedient odd-jobbers of the music industry do not understand at all, that “sampling” is as old as music: the old Romans already hat a name for this procedure: “cento” (patchwork); Bach sampled from Vivaldi, Mozart sampled from all his contemporaries, Beethoven sampled from Cherubini and Kreutzer (the entire “Fidelio” is one big patchwork from Franch revolution-opera’s); Stravinsky made sampling his speciality.

Let us not talk about popular music: millions of lovely songs all based on only 7 notes: without “sampling” they would not have been possible. Whether “sampling” occurs with ink and paper or with digital tools makes no difference: it is the essential part of the creative process since thousands of years. Please, let us not forget: the Berne Convention does not protect ideas, nor single sounds, melodic or harmonic fragments. It protects “works of art”, not the samples they are composed of. By the way: does not “com-ponere”, “com-pose”, mean “to put together”? The entire problem with “sampling” has been caused by the music industry, which wants to suck money out of every single sound of the compositions they have under contract. They are behaving like the not less dubious pharmaceutical industry which, instead of producing medicaments as a remedy for billions of sick people, abuse their patents to sell their products at a price which about 2 billion of people in poorer countries cannot afford [iv]. Like these pharmaceutical patents are just preventing people to be healed, music industry with its damned copyrights is preventing culture to develop. Both behave as an axe at the roots of the pear-tree on the burial-place of good old Ribbeck.

In our case this tree is called: culture. And let me be extremely clear: in a civilized world culture is a common good. It is certainly not the private property of industrial corporations. Their universally claimed so called “copyrights” have to pale beside this common good. Well, what concerns the children under the tree: education is the core of culture, and products of culture must be put at the disposal of education for free. Do not tell me, that the authors of text or music must be remunerated even from educational activities: education is an investment into their career too. Do not protect authors against their future public but protect them against the increasing excesses and the permanent threads of the music and culture industry. Before the rise of music industry authors have been perfectly in a position to develop their business models. They are already busy to develop new ones for the digital age and its new economic structures. One thing is for sure: without music industry and their political lobbies in Brussel and Washington, these models will lead to a substantially less expensive market for cultural goods.

Well, the pear-tree on good old Ribbecks grave will grow and I hope that it will be be fertile for the benefit of all.

Let me close with some practical conclusions concerning the future of Authors Rights Administration:

1) As the online rights seem to have the knack of everybody, one single administration center (for at least Europe) will be enough. Concerning the traditional performing – or the more recent “neighboring” – rights: Please do not make them a annoying appendix of the actual online-hype. This latter one is – in economical and administrative perspectives – an extremely fragile thing, which by the way neglects more and more the holy principle of cultural diversity. Get out of your mind the (anglo-american) term “copyright” and put “authors right” back on its first place. Which means: a rigid separation of Authors Right from Copyright. For what concerns the CMO’s: stop continuing the increase of their budgets (which only look fine in their annual reports), but relate every increase to a real increase of your authors.

2) We urgently need one single Authors Right for the entire continent. As everybody tells me, that the CMO’s (and their authors) already operate at an European level, legislation limps lightyears behind this evolution. And when such an European Authors Law is being formulated, its starting point should be the clear definitions of the Berne Convention, which only mentions the RightOwners, the creators. RightHolders (especially the music-industry) can be served by license-contracts, but their intrusion into the world of Authors Rights has to come to an end.

3) As the modes of artistic production are radically changing in the digital age (as well in pop- as in art-music), as score-notation is being replaced by sampling, the CMO’s should respect the previsions of the Berne Convention and protect already realized “works of art” and not every minor snatches which are absorbed into them.

4) CMO’s should only cash for the use of music where music is performed (or produced) with commercial intentions. As I already stated: any use of music (in whatever form) should be completely free within the educational process (schools, music schools, conservatoria etc.). Some AR-laws in Europe already have the relevant provisions (Germany: § 46, Netherlands: § 12[5]). It is only publishers and industry who reanimate this miserable discussion once in ten years: not the authors!! As it is already clear, that downloding makes the richest artists richer and nails the 99% of poor ones to the place they already occupy, please stop lamenting over the so called “illegal” downloads. Where the price of a download under a Spotify settlement is €-cent 0,0003 per click, the entire fuss about “illegal downloading” is nothing else than a mythology of music industry. Anyhow: you cannot maintain (or uphold) any law against this practice, so stop to bore all international gremia with this mantra.

5) As the CMO’s all dream of technical-digital progress-without-end, they should be aware, that this progress will make them completely superfluous within some decennia. They will be reduced to licensing- and control-offices; the money flow will go directly to the Rightowners. Collective Management will be maintained, but it will be poured in completely new forms. With internationally coming up databases for all works, this step is logically unavoidable. As it is already going on, we should keep to the simple formula: maintain and improve all principles of Authors Rights and adapt their administration to new challenges. Authors Right – as a human right – will last; organizations come and go…

Vemi vám za laskavou pozornost!

[i] Thedor Fontane: Herr von Ribbeck auf Ribbeck im Havelland (1889)
[ii] See: Steve Knopper: Appetite for Self-Destruction; The spectacular Crash of the Record Industry in the Digital Age, London-New York 2009, especially pages 183 seq.
[iii] Johannes Kreidler in 2008; see the interesting book by Harry Lehmann: “Die digitale Revolution der Musik – Eine Musikphilosophie”, Schott, Mainz 2012 [ISBN 978-3-7957-0825-2]; See also: Hans Platzgumer/Didi Neidhart: Musik = Müll, Limbus, Innsbruck 2012 [ISBN 978-3-902534-65-1]
[iv] Look at the recent law-suit in India, where pharmaceutical giant, Swiss Novartis fights for getting a patent on its anti-cancer pill ‘Glivec’ (which it sells at astronomic prices). Indian pharma-industry sells the same product for acceptable prices and accuses Novartis, that their “patent” is only an “Evergreening” – that will say, only a slight variation of an old, running-out patent. Music industry does the same with its “covers” (of older songs): they introduce them as “new compositions” and thus they extend the period of “copyright” of the original title. See: Le Monde Diplomatique, décembre 2012, p. 12/13: Safari sclapel à New Delhi.

Bio Konrad Boehmer

Konrad is a noted composer of orchestral, dramatic, chamber and electronic music and for 35-years a professor of composition and music history at the Royal Conservatory, The Hague. He has been active in the authors’ rights movement as a member of CIAM, the international body representing composer-members of authors societies worldwide for 40 years as well many years spent as the immediate past President of BUMA/Stemra, the authors’ society of the Netherlands. He brings an understanding of the changing creative process for composers over recent decades of dramatic technological development and an insiders view of how the digital age has affected the management of rights and what can be done to improve access to works for all whilst ensuring creators’ rights are respected.