The Well-Pilfered Clavier

Does copyright protection prevent creators from making stuff and selling it?


He has been called the "immortal god of harmony," "the beginning and end of all music," "the supreme genius of music…who knows everything and feels everything," and "a benevolent god to which all musicians should offer a prayer to defend themselves against mediocrity." Yet he behaved like any unauthorized music sampler, mash-up artist, or file-sharing college student. He recirculated other people's music—sometimes with attribution, sometimes not—with often minor changes. He cribbed material, borrowed music to plug gaps in his work, and reused his own creations with an abandon that would shame a freelancer for Demand Media.

This punkish intellectual property scofflaw was Johann Sebastian Bach, master of the baroque style, spiritual father of modern Western music, literal father of a family of musicians, and inspiration to working creators everywhere. He was also —maybe not coincidentally—a serial user of other people's work. According to one legend, as a child Bach would jailbreak and copy music his family had locked away. Later, he came into his own as a composer in part by taking a large body of work by Antonio Vivaldi and transposing it for the keyboard. 

He was even more aggressive in cannibalizing his own output. Music for the funeral of Prince Leopold of Anhalt-Köthen turns up later in The St. Matthew Passion. All six parts of the The Christmas Oratorio are retreads from a secular work Bach had written on commission for the Saxon court. Bach's Mass in B Minor, described by one 19th-century musician as "The Greatest Artwork of All Times and All People," is almost entirely recycled. "Almost movement by movement you can trace the Mass in B Minor to earlier work," says Daniel R. Melamed, professor of music at the University of Indiana. "Bach was not captive to his own material."

How was he making money on this output? How can a creative work have value in an environment without any intellectual property protection?

A new study by a German economic historian hints at an answer. In his two-volume History and Nature of Copyright, Eckhard Höffner compares and contrasts the industrial-age economic histories of Britain (which provided copyright protection beginning with the 1710 Statute of Anne) and the 39 German states (where a uniform copyright code was impossible to enforce across a loose federation).

Höffner's discovery: German writers produced more books and made more money than their English counterparts. Through the middle of the 19th century, the German book market produced and sold roughly five times as many books as the British. The advantage was interrupted only by the Napoleonic occupation, and it did not end permanently until after 1848, when Germany began to enforce consistent copyright rules.

Höffner received a cool-to-negative American reception for his claim that Germany's piratical publishing free-for-all contributed to faster GDP growth during the period. But his numbers on the book business remain compelling. In Britain, books cost about a week's pay for a working person. In copyright-free Germany, the price was about half a day's pay. 

Yet payments to authors were more generous in Germany than in Britain, with British authors typically surrendering all rights to a publishing house and seeing little in commissions, sales of rights, or profit sharing. German writers got much higher up-front payouts and earned enough to live in middle-class comfort. Self-publishing, which existed only in subscription form in Britain, thrived in Germany. A system that pleased both creators and consumers: How was it possible?

It helps to be happy in your work. Bach was not as entrepreneurial as his friend Georg Philipp Telemann—a publisher of his own music and precursor of the independent musician/composer—but he augmented his late-feudal stipends with moonlighting, teaching jobs, freelance performing, and similar small-time hustles. "Most of the music Bach writes he composes for various duties," Melamed says. "Often writing a piece is the easiest way to get exactly what he needs."

Bach had an incentive to keep producing new crowd pleasers. Maybe he suffered from a lack of intellectual property protection. One of the challenges in building the Bach catalog was sorting out all the copycats, transposers, and claimants to his throne. But in his own career, he seemed to see himself as a beneficiary of the freedom to appropriate. The result was infinitely adaptable music. Spend 10 minutes on YouTube, and you will find synth-popsters still working in the Switched on Bach genre that began in the early days of electronica, Celtic singers doing airy covers of "Jesu, Joy of Man's Desiring," sub-Malmsteens turning Invention No. 13 or Toccata & Fugue in D Minor into speed metal, "Air on the G String" played on a saw.

Genius is always an outlier, but the long half-life of baroque oldies suggests something else about the life-giving powers of the public domain. America's culture is dotted with gems like It's a Wonderful Life and Night of the Living Dead, works that grew famous when they fell out of I.P. protection and became free fodder to distributors. Maybe these movies were so great they'd have risen to the top in any market. (I'm inclined to believe it about Night of the Living Dead.) Maybe Bach would be with us under any circumstances. But history suggests otherwise. 

Bach was considered rustic and backward at the time of his death, and only his keyboard works remained in wide circulation, for their instructional value. His widow and sons, however, worked hard to disseminate his music, occasionally selling manuscripts but mainly trying to keep the work in front of an audience. Building the father's reputation was good for the family business. It remained good business long after Bach's 19th-century rediscovery, even after Bach's line of direct heirs went cold. Leipzig merchants still do solid business on Bach tourism.

It's worth remembering in our own time of blessed disunion, as copyright protection legally extends nearly a century after an author's death but the interwebs make copyright difficult to protect. A creator—musical god or Blingee artist—needs fans. But fans lose interest if the barriers to entry are too high. In an interview with Heise magazine, Höffner explains that reduced-price back issues sold well in all the markets he looked at—"but only if there was still someone who moved the book. For most books, readers' interest had waned." 

Tim Cavanaugh (tcavanaugh@reason.com) is a senior editor at reason.