The Recovering Choir Director

Jeffrey Tucker has received some updates on the ICEL text copyright issue, yet he cannot disclose any details or sources.  Read the entire piece on NLM; it deserves attention.

Here, however, I wish to highlight this following passage (links, footnotes, and emphasis added):

Now, in what seems to be a new policy, ICEL has been kind enough to permit its texts to be posted online with no charge.  This is an exception made for “non-commercial distribution.”^[1]  That’s fine, and more than GIA is likely to allow with its upcoming Psalm monopoly, about which more in a bit.  The important point is that technology is melting away this strict distinction between commercial and non-commercial.

Let’s say you make a series of Mass booklets using ICEL texts and assemble these in a 50-page download packet.  So far, so good.  But let’s say that not everyone has a printer that can print front and back or access to a copy machine that adds a saddle stitch.  These days, with one click, you can have the site print and bind it for you and mail it—provided the user covers the direct costs.^[2]  Is that now commercial?  Why is it more commercial than if the user printed it and paid someone else to print and bind it? And what if the costs include upload time and serve expenses?  What if the profits, if there are any, are donated to charity?  At what point does this cease to be free distribution and become a forbidden “commercial exchange?”

I have used Lulu.com recently to create coil-bound volumes of sheet music freely available in the public domain, so I can attest to the ease of the process.  (I may make these volumes available for sale to the public at some point.)  But this gray area of which Jeff Tucker speaks affects all of the ritual texts of the Mass under copyright.

For example, I have set a number of responsorial psalms (according the currently official liturgical translation) to melodies informed by Gregorian chant.  At the moment, I have no intention of turning them into a physical volume; however, if I were to continue setting these for every Sunday and holy day of the three-year liturgical cycle, it may make sense to compile them into a volume for the sake of convenience.  If I were to set the Propers of the Mass in the same way, it would make sense for these to be compiled, too.

I have no problem with people freely downloading my settings and printing them out for their use, commercial or noncommercial.  At this time, I have placed all of my psalm settings under a Creative Commons Attribution Non-Ported 3.0 License, which is conceptually equivalent to Michelangelo’s carving of his name into the Pieta that he sculpted.  But what if someone downloads my settings without my permission, talks to the copyright holders, negotiates a royalty schedule for use of the liturgical texts, and sells them at a profit?  The copyright holders are happy, the publisher is happy, and both monetarily profit off their efforts.  Should I feel exploited?  Not at all; I place my works under the Creative Commons Attribution License completely aware of this possibility.  After all, the only restriction I have placed on my output is that it be distributed with my name on it. I profit by getting my name “out there”.

If I moved to a Share-Alike License, then the enterprising individual or entity would be legally forced to negotiate a royalty schedule with me.^[3]  However, in this age of Internet transparency, I think that courtesy, not law, dictates that the prospective publisher notify me of their intent before the fact and not after.  The bigger the publisher, the more critical their notice needs to be.  If someone were to publish my settings at a profit without informing me — or better yet, asking me if I wanted a royalty to be sent to me or to a charity — without the threat of legal recourse, I would not hesitate to call them out on their perceived discourteousness as soon as I discovered it.  I would also tell them to keep their money as a testament to their discourteousness.

But I digress.

Given that I can freely publish public-domain works in PDF, I can freely publish copyright works in PDF so long as the print-on-demand service doesn’t discover it.  I’m not saying it’s advisable, only that it’s possible.  If I (or someone else) were to produce a volume of my Responsorial Psalms, or even the entire collection at Chabanel, at cost, and bequeath it as a gift to the parish, what would happen?

If I, or the responsible party, were to be discovered, would royalties be charged on a retroactive basis?  To whom: the composer, website host, or print-on-demand service?  And even if the physical reproduction were produced at cost, i.e., zero profit?

The Chabanel project raises another question regarding the “donate-ware” model that is prevalent in the software industry.  The Chabanel site operates on the basis of donations.  Are the donations subject to a “royalty tax” on account of their hosting musical settings of copyright texts?  If I, or another composer of greater merit than I, were to ask for donations to continue compositional work, including those works based on copyright-restricted texts, are receipts subject to a “royalty tax”, even though not all of the work employs such texts?  Should they be?  If so, why?

I welcome clarifications to any errors in my reading of the Creative Commons licensing provisions, and indeed all observations I have made.  This issue deserves attention, as it affects the musical development of the English-language liturgy of the Catholic Church most crucially.