Classical music steps into the chiller

In my summary post on the Intermezzo/ROH kerfuffle, I speculated that the ROH’s legal representative was taking the existence of a law as a reason to enforce it as strongly as possible.

There is a legal term for this phenomenon – a ‘chilling effect’ – a situtation in which ‘speech or conduct is suppressed by fear of penalization at the interests of an individual or group’. It’s clear that copyright law – which is big, scary and complicated (even before you bundle it in with the other realms of IP) – is starting to generate a culture of fear in ‘gatekeeper’ organisations.

The ROH’s challenge to Intermezzo is only a recent example in a long line. In 2001, in response to a perception that the increased, yet unregulated, use of Cease and Desist letters against internet users was having a ‘chilling effect’ on free speech, the Chilling Effects Clearinghouse was established by a group of US law schools and the EFF. It aims to help internet users (at least those in the US) understand the protections that the First Amendment and intellectual property laws give to their online activities. It now holds nearly 7000 records of C&D notices that have been submitted to it. (As a sidenote, Techdirt has coincidentally just posted an analysis of the conflict between copyright and free speech.)

One can imagine the frantic meetings that took place in Covent Garden last week. Although the circumstances were rather different, a similar mood – somewhere between confusion and panic – may have prevailed at Boosey and Hawkes the week before in the wake of Hammered Out, when press enquiries were met with a firm ‘no comment’. I don’t hold anyone at either house particularly to blame: thanks to the dual creep of copy restrictions and the inherently unrestricted Internet, institutions like the ROH and Booseys are having to deal with complex and rapid phenomena for which they’re not wholly prepared. Who is? Emails like the ones received by Intermezzo are almost a survival technique, or a cry for help: a way of passing the fear on to the next link in the chain, just to be on the safe side. This is the chilling effect.

Right now, bloggers are that next link. We are a pseudo-press. We like the cultural status of the real thing, but we don’t have to run anything by an in-house lawyer before publishing it. But as blogs, Twitter, YouTube, Facebook et al. continue to shrink the distinction between consumers and commentators, commenting on an artwork (by posting photos, audio or video extracts straight online) comes to approach consuming it in the moment. Posting content is now part of how we internalise and aestheticise artworks, re-viewing them in memory as always but now with all the multimedia supplements to memory that technology affords. Everyone is joining the pseudo-press. The exceptional audience member will one day be the one who doesn’t immediately infringe a copyright in their digital concretisation of what they have just seen. Given this, we all have plenty to fear from the fear of copyright law. Unchecked, eventually the chilling effect will reach us all.

5 thoughts on “Classical music steps into the chiller

  1. The chilling effect surely works two ways.

    The ROH presumably cares about audience development, and the bad publicity courted by threatening one of their own fans – and an influential blogging fan at that – might outweigh the benefit of stopping that fan using copyright material. It seems a simple cost-benefit trade-off, and in this case surely the cost is not worth the benefit.

    That, at least, is logical. However, IP-owners are forced to take action against any copyright infringement, as far as I understand, because to not take action against a known infringement is equivalent to allowing the infringement – if you don’t defend your IP, then it’s fair game. I think this is the reason why so many big organisations seem to delight in squishing some of their most ardent fans. I’m sure they wouldn’t if they weren’t effectively forced to, because the cost surely outweighs the benefit.

    A better way of dealing with this kind of infringement might be to write (nicely!) to the infringer saying what they’d done, and granting them a license in retrospect. This would not only make the use of the IP above-board, it would probably reinforce the good impression of the IP-owner that the fan already has. I am not a lawyer, and maybe I’ve misunderstood, but this seems common sense to me (not that common sense is ever allowed to get in the way of the law….)

  2. I don’t think the assumption of your second para is true, Tim. At least to my knowledge. Yes, trademark owners are obliged by law to defend their copyright. The legal logic runs thus: a trademark is something its creator declares is worth something, and must therefore be protected by the law. The law says fine – but you must tell us when it’s being infringed. If you’re allowing infringements then it can’t be worth as much to you as you say it is, so why should it deserve the law’s protection?

    But copyright (like trademarks a subset of IP, but not the same as trademarks) is a right that the law automatically confers. It doesn’t require the creator/owner to declare a value on a piece of work. In fact the value of the work is irrelevant: copyright is copyright is copyright. For this reason the logic behind trademark law doesn’t apply to copyrights: your copyright can be infringed 100 times over, but you’re the only one losing out (i.e. on revenue): the law will still offer you the same protection for the 101st time. If a trademark is repeatedly infringed it is the law that is losing out, because it isn’t obliged to protect that trademark: if you come to it on the 101st time the law is free to say ‘ you didn’t want it that much before now, so stop wasting my time’.

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