CoCo points to Olufunmilayo Arewa’s “From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context” (December 2004). Case Legal Studies Research Paper No. 04-21,” which certainly merits a look, but a footnote in the early part points to a topic that Arewa refers to, but elects not to pursue, that looks equally striking – Michael Carroll’s “Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property — Part I” (a paper is “forthcoming” in the University of Cincinnati Law Review). The abstract is enticing:
Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle Ages, when musicians’ guilds enjoyed the exclusive right to perform music in medieval cities, but that the concept of music as a form of property was not established until early music publishers received exclusive rights in their publications during the Renaissance. The Article concludes with thoughts about how this history should influence the way we address the current controversy concerning uses of music on the Internet.
Even later (p.97), a few hints at alienation concepts close to my own heart:
To determine whether the concept of property in music that vests initially with the composer or authors of the sound recording will continue to make sense, we should consider the new possibilities. First we should consider whether we relate, or want to relate, to music as an intersubjective experience shared among composer, performer, and listener, and mediated through the digital object of recorded music, or do we as listeners interrelate with recorded music as object only. Then we should ask whether property in music is the appropriate legal framework to structure that relationship.
In 2003, intersubjective relations appear essential for at least some sorts of music. With most popular music, the persona of the music’s composers and performers plays as important a role now in how audiences receive the music as it did when Renaissance publishers first began touting the credentials of their composers. The same can be said for composer-audience relations with respect to classical music and most jazz. But some forms of instrumental music serve as little more than musical wallpaper, in which the audience’s interest is solely in the qualities of the musical object. Consider the commuter with jangled nerves who tunes in the radio station featuring “Smooth Jazz.” The commuter may well be indifferent to whether the soothing sounds emanated from Kenny G or a Power Mac G5. For such computer-generated music, property rights will not have induced creation of the specific compositions, although property rights may induce creation of the software that generated the composition.
For the foreseeable future, though, changed material conditions seem unlikely to alter our collective preference for at least some human-composed and human-performed music. Our task, in that case, is to assess whether the changed material conditions presented by digital technology, insofar as human musicmaking goes, are sufficiently significant to cause us to abandon or alter our notions of musical property.