[Opinion] Public school music performances should use public domain music

This essay argues that public domain music should be used for public school music performances in order to protect the interests of stakeholders, including the student performers, their families, and the tax-paying communities.

Image Source: Pixabay.com, License: CC0, Public Domain

Introduction

During the early 2000s, a debate began about the public's right to access scientific research that was funded by public tax dollars. The debate continues, but a reasonable position is that when science is funded by public tax dollars, the public should have the right to read the journal articles that it pays for. This debate gave rise to open access journals like PLOS and government provided public access databases like PubMed. In my view, too much publicly funded science is still locked up behind paywalls, but the current situation is far superior to the lay of the land in the 1990s and before.

It recently occurred to me that there is an analogous situation in the space of public school music performance. The community pays for the music. The community pays for the instrumental and vocal instruction. The community pays for the concert venue. Yet the community has no rights to record or share the musical performance that it funds.

Further, as the parent of a budding musician and public school student, I see first hand how our tax dollars and our children's labor are being coopted by the music industry. Although it is routinely ignored, musicians' families are frequently lectured about the importance of respecting the composer's copyright and intellectual property, and even prohibited from recording our own children's performances! If we have the temerity to violate the prohibition and post such recordings on youtube so that grandparents and cousins in other states can view them, the copyright owner claims the rights and gains revenue from our children's performance and our community's tax dollars. In a very real sense, our young public school musicians are having their hard work conscripted by the music and publishing industries.

Of course, I'm no lawyer, but I assume that under existing copyright law, public schools are on solid legal ground when they prohibit recording, and that the music industry is perfectly entitled to monetize our children's work. Yet, I consider this situation to be unacceptable. A parent should be able to legally record their child's performance and share it with grandparents, or anyone else, without some corporate behemoth interfering with the transaction. Likewise, the community should be free to enjoy the performances that it pays for on its own terms. The only way I see to resolve this tension among the rights of the publisher, the rights of the performer, and the rights of the community is for public schools to eschew the performance of copyrighted material.

There may appear to be some irony when a patent-holder makes this argument, but I am not arguing to abolish copyright, just that its use is inconsistent with public funding of music. In this essay, I will discuss three possible counterarguments: Music composers can't survive without copyright protection; Public domain music is lower quality than copyrighted music; and Interscholastic organizations require the use of copyright protection.

Music composers can't survive without copyright protection

(aka: Your son wants to be a composer. Have you really thought this through?)

Being a composer has never been easy, and it gets harder every year. I wrote about this in Thoughts About Parenting: Career Advice. Composers don't just compete with their contemporaries, but they also compete with every work that's ever been written and recorded, over the course of centuries. So it's fair to ask if the public schools should make the life of a composer even harder?

First, I'm not saying that composers shouldn't continue to make use of copyright protections. Composers should be free to use the copyright laws if they think it's in their best interest. I'm just saying that public schools should not use copyrighted works for their public performances. The composer could still sell copyrighted works to any other customer. If a composer's business model depends upon conscripting the labor of a nation-full of school children, then perhaps their livelihood deserves to be jeopardized. However, I think the premise is flawed.

Image Source: Pixabay.com, License: CC0, Public Domain

The same argument has been made about software, but the Linux operating system and open source software movement have proved that it is possible for talented programmers to earn significant income without relying on intellectual property monopolies. There is no reason to believe that musical composers can't do the same. In fact, using history as a guide, if the public schools create a market for public domain music, then composers would also be free to reuse and recombine all of this material without worrying about infringement. Hence, I would expect a Cambrian explosion in opportunities for composers to match the one that we've seen for programmers and developers over the last couple of decades.

In fact, no matter what, I think that open source software using blockchain accounting and innovative delivery mechanisms is going to be a big part of an unavoidable musical Cambrian explosion. Like it or not, the world we know is about to change. We can go along for the ride, or we can cling to obsolete practices that are sure to be supplanted. I say we should ride the wave.

Public domain music is lower quality than copyrighted music

I'm not qualified to agree or disagree with this claim, although I suspect that it's dubious. Regardless, there is a ton of high quality public domain music available from genres such as classical, folk, and contemporary music including composers like Beethoven, Mozart, and Scott Joplin. Existing web site resources include: The International Music Score Library Project, MusOpen, and The Mutopia Project. Certainly, this is already high enough quality for nearly all instructional cases.

Image Source: Pixabay.com, License: CC0, Public Domain

Additionally, again using open source software as our guide, we can expect that if public schools across the country restrict their music to the public domain, many composers will start placing some or all of their works into the public domain in order to increase their audience and exposure. Although some composers may continue to rely exclusively on copyright protections, new business models will emerge as others open some of their works to the public domain, and still others place all of their works in the public domain. The end result can only be an increase in quality and diversity over what's available now (which is already high quality).

In addition to the aforementioned arguments, another important point is that public domain music will save money for the taxpayers. In addition to lowering the cost of the existing operations, this may also lead to opportunities to hire new teachers and thereby support instruction for more musicians. In the long term, this will also serve to raise the overall quality of music.

Interscholastic organizations require the use of copyright protection

My son's marching band competes against other bands in an interscholastic league that imposes even more restrictions on recording than the publishers themselves. This really isn't optional. If the extracurricular entity joins the interscholastic organization, then they are agreeing to the terms of participation, and the interscholastic organizations all do it. In this situation, there are (of course) two ways to respect performer, parental, and community rights when dealing with interscholastic organizations. First, public schools could refuse to join any interscholastic organizations that prevent parents and the community from fully enjoying the musical performances; or second, as an extracurricular activity, the school organization could fund itself entirely through private and voluntary contributions.

Image Source: Pixabay.com, License: CC0, Public Domain

These interscholastic organizations get their revenue from public school membership, so if enough public schools adopt a policy requiring public domain performances, then market discipline will force the interscholastic organizations to do the same.

There would probably be a difficult transition period, but tax-paying communities should eventually demand that interscholastic organizations who depend upon them for revenue should yield to the interests of the communities who fund their operations, the musicians who perform for them, and the parents who support it all.

Conclusion (TL;DR)

The question of private use of publicly funded resources occurs in many forms. As noted in the introduction, it has been discussed for over a decade in the sciences. A similar question also arises in college sports. As with those fields, it is important to look at the incentives of participants in the performance and funding of music in America's public schools, and to make sure that all stakeholder interests are protected.

It appears to me that the only way to harmonize the rights and incentives of composers, publishers, students, families, and tax-paying communities is to ensure that public funding is not used to advantage copyright holders at the expense of all other stakeholders. In addition to harmonizing the incentives for all stakeholders - as we saw in the software industry - making use of public domain music in our public schools would also reduce the cost of music instruction, lead to new revenue models for composers, and lead to generalized improvement and innovation in the quality of music that's available to society.

Thank you for reading! Here's a reward for anyone who made it this far:

Steve Palmer (@remlaps) is an IT professional with three decades of professional experience in data communications and information systems. He holds a bachelor's degree in mathematics, a master's degree in computer science, and a master's degree in information systems and technology management. He has also been awarded 3 US patents.

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