Copyrighting the liturgy?
February 7, 2009, 5:07 pm
Posted by Joseph A. Komonchak
Jeffrey Tucker has an interesting piece on the copyrighting of liturgical texts, with a passing reference to the copyright of translations of the Bible. I’d be interested in what liturgists and biblical scholars think of the question–musicians, too.
This is not my area of law–but copyright is also about the right to control the dissemination of a work as well as charge for it.
So Notre Dame cares about vigorously defending its copyright of logos, etc. not merely to make money off it, but to insure that its logo–its name–are used appropriately. (They must have missed the fact that Brad Pitt’s assassin character in Mr. and Mrs. Smith admitted to going to ND and majoring in history–sorry John McGreevy!)
I could imagine that this other aspect of copyright might of concern with respect to liturgical prayers and texts.
I’m a musician, so here are my two cents.
In my opinion, the article raises some important questions, but also takes an unnecessarily negative or strident tone.
The purpose of copyrighting intellectual property is to establish ownership, from which a number of rights derive, including, as the author focuses on, the right to license the intellectual property to others, and to charge a fee for it.
I don’t think it’s a bad thing for ICEL to protect its intellectual property by copyrighting its work. I’d urge any individual or organization that creates intellectual property to do the same. It establishes who “owns” the work, and thereby protects the owner from the product being abused by others, for example unscrupulous parties who might try to claim the work as their own.
The questions of how broadly the copyrighted work is to be licensed, whether to charge licensing fees, and if so, how much to charge, are separate issues.
The Catholic Church has chosen to use commercial methods for distributing its sacred texts. It has licensed the copyrighted intellectual property to publishers, who provide a number of important services: they publish the works; they distribute them to parishes and other organizations that need them; and they administer the licenses, including collecting fees and paying them to the copyright holders. It’s an effective system. I’ve never heard of a parish, or any other church organization, not having access to the sacred texts because the system has broken down, or the costs are too expensive to afford.
I am sympathetic to composers who try to navigate the rules around using copyrighted texts. I’m sure it’s not simple. But I also believe that the publishers are very helpful in this regard.
The author isn’t fair in its characterization of the major Catholic publishing houses. The ones I’ve dealt with – GIA, OCP and WLP – see their work as an apostolate, and that is the spirit that seems to pervade their organizations. Also, they are extremely professional, maintain high standards, and our worship is the better for it. Maintaining such standards is not free.
Could there be many more publishers if the texts were put in the public domain? Sure. But it doesn’t therefore follow that our worship would be better for it. There is a vigorous and vibrant publisher market already, and we musicians don’t seem to lack for choices – in fact, there are so many options that it’s virtually impossible to keep up with the reams of new music constantly being published.
Here is the key to the current system: tasks such as the translation of texts, creation of musical settings, and publication are professional tasks. Perhaps it was done by Benedictine abbeys at one time out of the largesse of the house, but that’s no longer the case. These days, professional services are not free – the translators, composers et al are workers who are entitled to their wages – and the licensing fees and other fees charged help support the service providers.
Finally – I question the assertion that “Jesus, Lamb of God” (the allusion clearly is to Mass of Creation) was written to evade copyright. I’m not an attorney, but I doubt that inserting the word “Jesus” in front of a copyrighted text would pass muster as a way to get around licensing issues. Moreover, most of the texts in Mass of Creation are faithful to the ICEL translations, and the copyright administrator (GIA, as far as I know) certainly understands the copyright requirements.
Cathy, you may be right. But then, why is there a fee to use the texts?
If you are right, then the question is: can the liturgical texts be so controlled? Don’t they, in fact, belong to the Church at large, as our shared treasure? I believe this is Tucker’s primary concern.
Thank you for posting this.
I try to make a distinction between ritual texts, to which the copyright/royalty system should not apply, and new creations of music or poetry or homilies or whatever. Nor is there any problem with buying and selling Church goods. The “intellectual property” of the Mass texts is the critical issue. It gives rise to slew of morally dubious practices. And the Catholic Church, so far as I know, is the only Christian body that does this to its ritual texts. Episcopal friends of mine were astonished to find that an institution called ICEL has copyright over the Mass. Anyway, I explain this in more detail in my article.
Thank you again for linking this. I’m surprised that this is not a major source of controversy today. I hope my piece makes some contribution to at least raising questions.
What is the legal status of ICEL? What does it do with the money it collects?
Does some Vatican agency have copyright of the Latin text of the Roman Missal? If that is the case, would the same party have the exclusive right to control translations of the the Roman Missal? Is it possible to copyright a traditional text?
Thanks for the link. I would imagine priests and musical directors might be interested in the issues Tucker raises. Do they have any “interest groups” to route their concerns to the USCCB?
Certainly one of the problems with the present arrangement is that the temptation must be great for those large publishers who control the market to fill the musical part of their missalettes up with bland recent musical settings and hymns they own and on which they get royalties. The parishes near me all seem to use Oregon Catholic Press materials that include a lot of ghastly home-grown stuff.
I confess I get much less excited about this. I blogged about this yesterday, but to add my input as a composer & church musician of nearly 30 years:
I’ve never had a problem dealing with ICEL, even when I wanted to include a text of theirs in a collection I was selling for personal profit. I called them. I asked permission. They granted it and waived their fee.
When I use ICEL material for liturgy, I get permission and I’m not charged a fee. Never have been.
Mr Tucker and some of his comrades set themselves up for an adversarial relationship, and what result can they hope to achieve? Simony? Get real.
Some Catholic parishes and church musicians have been burned by illegal copying of copyrighted music–done so penny-pinching pastors can buy other things. I’m not surprised that copyright owners want some degree of quality control–and talking to potential collaborators and sensing out their agenda is part of ther deal.
The ICEL policy Mr Tucker quoted basically says you can’t use out texts, then rake in all the money from selling “our” product.
That said, I do support the effort to set up a more creative outlet for unpublished composers of liturgical music. I suspect this is where My Tucker and his more vocal colleagues from traditionalism are coming from. It would be of great benefit to many up-and-coming composers, as well as established ones to have a collective effort to share music and test it in our different parishes. Doing this would raise the bar on material that goes into formal into the publishers’ in-box. It would be at that stage, I suspect, the USCCB and ICEL would want their share of the pie. I don’t think there’s a problem in suggesting they deserve it for the work they put into translations, and all. What is curious to me is the insistence that traditionalist composers should be able to sell this music for a 100% profit, plus post the texts on other sites only to snipe and criticize and jack up the site meter, and in turn, the ad revenue.
Prof. Gannon –
It seems to me that because the old texts of the Mass are centuries beyond the time limit of current copyright law that the texts could not be copyrighted. However, it is my understanding that *a new presentation* of an old text can be copyrighted, e.g., a newly illustrated hymnal. I have a book that reproduces some pages of the Book of Kells, and it is copyrighted. I suppose because the photographs of the pages are new, and photographs can be copyrighted. But don’t trust me. Copyright law isi extremely tricky, I hear.
I’ve been told, though I’ve never seen it in writing, that the Oxford University Press holds (and always has held) the copyright to
a) the King James version
b) the Book of Common Prayer
though whether the latter means just Cranmer’s text, or its later permutations, I know not.
My copy of the KJV was published by Cambridge University Press. It includes the following statement: “Rights in the Authorized (King James) Version of the Bible are Vested in the Crown. This Bible is published by Cambridge Unversity Press, the Queen’s Printer, under Royal Letters Patent.” I also have a copy of the Book of Common Prayer piblished by Cambridge without further explanation.
My copy of the St. Andrew Missal, which those of you who are of a certain age may recall, was copyrighted by Abbaye de St. Andre, Bruges, Belgium.
Some further data. The Greek-Latin New Testament published by the Deutsche Bibelgesellschaft has a Greek text for which the DB holds copyright but uses a Latin version(Nova Vulgata, Editio altera), for which the Libreria Editrice Vaticana holds copyright. However for the Biblia Sacra Vulgata edited by Robert Weber and also published by the DB, it is the DB that hold the copyright.
Should not the copyright owner of the biblical and liturgical texts be God?
Gabriel
I am glad your sense of humor is intact.
I think there’s a distinction to be made between a) editions of the Bible and b) liturgical texts.
Yet this distinction is blurred by the direct overlap of extended passages from the Bible and liturgy: the Lectionary.
I suppose one reason to copyright texts is to prevent someone else from doing that and then charging, misusing, etc.
This, of course, begs the question of charging to use copyright liturgical texts in a Catholic liturgical setting.
I find this argument most intriguing. Tucker’s position is certainly populist, and yet in terms of musical styles he is traditional. So in a way he is advocating the freedom of composers to write and publish in a more traditional musical style.
We don’t find it strange to pay architects snd sculptors for theor designs of churches snd ststues. Why would we not pay musicians for their designs?
Ann, actually the question here is whether the translators of liturgical texts should be paid for their work, or whether liturgical texts should belong in the public domain.
Two analogies, from different angles:
1) Isaac Watts’ hymn text Jesus Shall Reign is in the public domain, because its copyright has expired. If I were a composer / arranger and wanted to publish a new musical setting for Jesus Shall Reign, I would not need to ask permission from anyone to do so; nor would I need to share the royalties for my composition with anyone.
2) Assuming (I actually don’t know this for sure) that judicial opinions are in the public domain, a law professor could write a textbook citing entire opinions without asking permission or sharing author’s royalties with the deciding judge. Or, a blogger could have a blog that simply posted opinions, with or without commentary.
Neither of these is an exact parallel, obviously. The question–notwithstanding the considerable expense of the translation project, which I think was done very well, by the way–is whether once promulgated these texts belong in the public domain. Do Catholics need to ask permission to make use of their own iturgical texts? If so, why?
Of course, if we stuck to music by Isaac Watts and earlier composers, and some of W’s near contemporaries (as late, anyway, as Charles Wesley (John’s brother) d. 1788, not only would we be free from copyright problems, but we’d also be taking a Great Leap Forward in musical taste, compared to what’s found today in too many parishes.
Perhaps we should investigate too John’s father Samuel Wesley, who wrote, among other things, a Missa de Spiritu Sancto in 1784, first performed in 1997 (203 years later) in St. Patrick’s Cathedral, Dublin, as well as Ave maris stella, for 2 sopranos, strings, and harpsichord.
Then could we get rid of Glory and Praise, please?
There is considerable irony in the fact that the USCCB charges for the use of the New American Bible (both the original and the revised versions cost you), and the NRSV doesn’t. The result is that every publisher I know of uses the NRSV. If the Conference of Bishops really want their translations to be used, if they really think it is to be preferred, why set yourself up to fail? They are shooting themselves in the foot. It’s all to make a buck. They’re no better than the businesses, only more naive. Many book publishers, at least in the Catholic world, are on the ropes. They cannot afford to pay taxes for using scripture. The NRSV is not too bad. The revised NAB, on the other hand, is often terrible. So I guess the Catholic people made out well on the deal. But it’s crazy.
I agree with Todd, ICEL was never the problem in the past. But Todd, do you know if the policy has changed with the “new” ICEL?
I wouldn’t mind so much paying for the NAB for worship aids, except that one is also required to maintain the formatting and indentations. So my worship aids would have to be 8 pages long instead of 4.
That’s a great point, Kathy. The cost of paper is the greatest cost in the publishing industry too.
FWIW – one type of instance of which I am aware, in which ICEL’s legal right to control distribution of their texts has come into play: drafts of the “new” missal. There is at least one instance in which a website posted draft texts – i.e. texts that were not yet approved – distributed to English-speaking bishops conferences for study and consideration. The new missal is pretty controversial, and the process has been watched pretty closely. ICEL asked the site owner to remove the draft texts, citing (as I understand it) violation of the applicable copyright laws. In general, ICEL has made a considerable effort to keep control of the texts during the approval/recognitio process. Only a relative handful of people saw the texts when the bishops conferences were evaluating them. Making the texts freely available on the web would have opened up a much wider consultative process – in effect, it would have been a democratic process. ICEL and the bishops chose not to do that, and I do think the position is defensible (even though I really would have liked to see those texts :-)).
“Certainly one of the problems with the present arrangement is that the temptation must be great for those large publishers who control the market to fill the musical part of their missalettes up with bland recent musical settings and hymns they own and on which they get royalties. The parishes near me all seem to use Oregon Catholic Press materials that include a lot of ghastly home-grown stuff.”
I believe that is true, Susan – to a large extent, the publishers include their own stuff in their hymnals. They can license works from their competitors (and all of them do so for popular pieces), but it does increase their expense, so they do have an economic incentive to use their own stuff. I agree – it’s one of the weaknesses of the current set-up.
“Ghastly” is in the ear of the beholder :-). In the publisher’s defense, I’d point out that it (as well as their competitors) offers a selection of different hymnal products that contain different blends of contemporary, traditional, multi-lingual, etc. music. If what you’re using at your parish is “home-grown stuff” (contemporary?) then most likely that is because the music director or pastor selected whatever you’re using. But it’s not the only choice out there.
In addition, there are “a la carte” licensing options now, so a parish can, for a very reasonable annual licensing fee, pick and choose music from many publishers each week, without being tied down to a hymnal. They’d have to publish a worship aid, though.
At any rate, my experience is that 50%+ of the blame for “ghastly” music should be pinned on the musicians in the parish – ultimately, they’re responsible for interpreting, performing and leading it.
recently I read an article about powerful new technologies that will allow for individual small companies and even individuals to license their artistic products online. The services will include payments made through somehong similar to PayPal. Groups of artists can have their own sites, and will not be subject to the whims, bad taste and commercial pressures of the current publishing houses.
At last, artists could be paid what they’re worth, and people will have more choice. The problem, I expect, will be to find the quality stuffbecause everyone, talented or not, will be publishing.