Irish Traditional Music and the Copyright
Anthony McCann 2003
This article was published in the annual magazine Irish Folk
Festival (Petr Pandula, ed.) in September 2003.
The Irish Music Rights Organisation (IMRO) administers licences for
performing rights in Ireland, and is the equivalent of GEMA in Germany.
In their own words, "The Irish Music Rights Organisation is the national
body charged with administering public performance rights in copyright
music in Ireland on behalf of songwriters, composers, arrangers of
public-domain works, and music publishers. IMRO's function is to
collect and distribute royalties arising from the public performance
of copyright works."
A series of controversies during the second half of the 1990s saw
an eruption of suspicion, if not paranoia, about IMRO's operations.
However, by the year 2000, what had been one of the most notorious
organisations in the country had become one of the most accepted,
in a complete and almost miraculous turnaround. Now the organisation
operates with full government sanction, full support of the legal system,
and with an unchallenged economic monopoly position in the Irish
Performing rights provide one of the main financial supports for
the international music industry. When you clear away all the legal
jargon, and it's difficult enough to clear away, the primary function
of performing or performance rights, developed from copyright theory,
is that they act as a justification for prescriptive control, making
it legitimate for one person to prescribe the actions of another unless
a fee is paid. In other words: "Obey me! Pay me money! (or else!)".
This is the most basic of logic behind IMRO's licensing of "uses"
of "music" in public spaces. For IMRO to operate successfully, or
even to operate at all, licences for "music use" must be enforced
on the basis of either persuasion or litigation, and the claims to
authority that the organisation makes must remain unchallenged.
Licensing constitutes the primary activity of the Irish Music Rights
Organisation and is how the organisation earns money. In 2000
IMRO's licensing revenue came to IR£19,457,780. If someone refuses
to pay an IMRO licence when approached, then the organisation takes
recourse to the Irish Circuit Court. If a licensing agreement has
been contracted but royalties are not paid, then the "music user"
is sued by the Irish Music Rights Organisation as a commercial debtor.
Needless to say, performing rights licensing is invariably contentious.
A key performing rights dispute in the 1990s was that between IMRO and
the Vintners' Federation of Ireland (VFI), an association of Irish
publicans operating outside the Dublin area. Publicans objected to
the amounts they were being asked to pay for performing rights
licences and registered this objection in a campaign of non-cooperation
with the Irish Music Rights Organisation. IMRO had made numerous attempts
to achieve an agreement with the Vintners' Federation. Finally,
the Vintners' Federation of Ireland's fourteen year dispute ended
anti-climactically in late December, 1997 when an agreement was
signed between the warring parties. By 1998 it seemed that IMRO
had secured a position of unchallenged authority.
What complicated the Vintners' Federation dispute tremendously by 1996,
however, was the co-optation of "traditional music" as a major issue
in negotiations. As the VFI continued to complain about royalty
payments rates, they turned to the issue of performance royalties
for "traditional music sessions" to further justify their position.
Hugh Duffy, then Chief Executive Officer of IMRO, claimed that
the VFI were using the traditional music issue to lobby support
for their reluctance to pay royalties. This was very likely the case.
Publicans assumed that the "use" of "traditional music" or the
hosting of "traditional sessions" were somehow different from other
"uses" of music. Two claims were made. The first was that they shouldn't
have to pay performance royalties for "sessions" at all. The second
was that such musical events shouldn't be charged as much as others.
It was interesting that an issue was made of "traditional music" at all,
or that the representatives of the Irish Music Rights Organisation were
drawn into a discussion concerning it. If one were to follow the logic
dictated by copyright there should have been no distinction drawn
between one type of music and another on the basis of what the music
sounds like. Within the logic of copyright a "work" has either been
copyrighted or it has not, is either in copyright or is not,
regardless of musical genre. Concessions, though, were granted
to publicans. What became clear during the course of these
negotiations, however, was that for the people who played in
the "sessions" concerned, the issues extended beyond the merely economic.
It's really only in the last ten years that the issue of copyright
has become familiar to people in "traditional" social circles. Before
then it was of interest mainly to collectors and archivists, and to the
commercially-viable performers who always seemed to learn more about
copyright in the aftermath of a shady deal than they ever knew going
into one. The growing popularity of what was labelled 'Irish traditional'
or 'Celtic' music in music industry markets during the eighties
and nineties created a climate in which performing rights organisations
were called upon to meet the rising expectations of financial rewards
from royalties. In turn, the growing recognition of financial reward
for new composition led to an increase in both the number of tunes
being composed and registered, and in the number of arrangements being
claimed as original and copyrighted. Until the mid-nineties, however,
knowledge or awareness of copyright in traditional music remained the
preserve of few.
The tariff negotiations between the Vintners' Federation of Ireland
and IMRO made a difference. It still remained something of an esoteric
issue, but copyright had begun to impinge on the lives of people who
hadn't given it much thought before. Awareness of the IMRO-VFI dispute
among traditional musicians started to influence the choice of tunes
in sessions at least by 1996. Working from understandings that were
nothing if not confused, some musicians would refuse to play certain
tunes at "traditional sessions" because the tunes were considered
"copyright". Other musicians refused to play their own tunes until
such time as they had been released on a commercial recording, for
fear they would lose their copyright. Whether these concerns were
based on correct interpretations of the law or on complete misunderstandings
was of little matter.
The initial reaction of many to the inclusion of sessions in licensing
was simple incredulity. They couldn't see how ideas of copyright,
intellectual property or property of any sort could be applied to
"traditional" contexts, and specifically the session. As fiddler
Martin Hayes commented, "I mean, like, nobody owns the stuff.
You can't own this stuff". As another musician put it rather
bluntly: "You're not entitled to a copyright if it's being played in
the session, because that's alien to the whole culture to do something
The main concern seemed to be clear. IMRO was approaching publicans
regarding licensing for performance royalties due to their members.
Where "traditional" music was concerned, "arrangements" of tunes whose
copyright had expired, played by IMRO members, were deemed to accrue
royalties. Three things seemed to justify IMRO's jurisdiction in this
matter: these "arrangements"; the presence of newly-composed, copyrighted
tunes at 'sessions'; and the authority of legislation and international
agreements. Many musicians expressed concern that IMRO's claims were
inappropriate, and an intrusion, if not actually indirectly threatening
sessions in pubs. Rumours abounded that sessions were being shut down
on account of pressure placed on publicans by representatives of IMRO.
All in all, though, the perceived threat to sessions was greatly
exaggerated and largely erroneous.
Although there was undoubtedly demonisation of the role and
activities of the Irish Music Rights Organisation, and a considerable
amount of panic, rumour-mongering, and misinformation as to the damage
that might be inflicted on "the tradition", there were a number of
more measured concerns. Among these were accusations that representatives
of IMRO were applying the letter of the law to "traditional music",
without really knowing what they were talking about. To argue this,
or to say that IMRO had no jurisdiction in these contexts was hardly
likely to faze an organisation that claimed absolute jurisdiction in
all places outside of the family circle where there might be the
possibility of even one copyrighted work being played. Furthermore,
to argue that certain contexts were non-commercial was hardly likely
to succeed in the face of an organisation whose representatives
claimed that all contexts were commercial, and that the primary
motivation of human life was economic.
Interestingly, no organised traditional lobby group arose from the
general resistance to the Irish Music Rights Organisation. However,
the major Irish traditional music organisation already in existence,
Comhaltas Ceoltóirí Éireann (CCÉ), provided somewhat structured
opposition. At the time that "traditional music" became a focus of
the VFI-IMRO dispute, the official position of CCÉ as an organisation
was clear. In 1996, the members of Comhaltas overwhelmingly passed
a motion at their national congress pledging non-involvement with
the Irish Music Rights Organisation under any conditions.
The opinions of the full-time Ard-Stiúrthóir or Director-General
of the organisation, Labhrás Ó Murchú, were fairly representative of
concerns that were being generally expressed around the country.
IMRO had, he felt, no expertise or appropriate understanding of
what might be considered "traditional music". Furthermore, as far
as their mandate was concerned, Ó Murchú claimed that the number of
people in traditional music for whom copyright was an issue, whether
they were commercially active or not, was negligible. He gave the
clear impression that the vast majority of musicians involved in the
non-commercial world would never even consider the issue of copyright,
seeing traditional music as a free music, in the sense that everybody
could play it, without restriction, without consideration of ownership.
Furthermore, the copyright ethic of claiming ownership on tunes and
songs that IMRO was promoting was anathema to the spirit of generosity
which had sustained the types of "traditional" musical activity which
Comhaltas Ceoltóirí Éireann represented.
Following a series of private meetings, Shay Hennessy, then
Chairman of the Irish Music Rights Organisation, and Labhrás Ó Murchú
of Comhaltas Ceoltóirí Éireann, signed a 'Letter of Agreement' on the
21st December 1998. In this "wide-ranging agreement" CCÉ and IMRO
agreed to cooperate in the promotion of traditional Irish music, song,
and dance, to the mutual benefit of members of both organisations.
For a nominal fee of £1000, Comhaltas contracted with the Irish Music
Rights Organisation for a blanket licence to cover all official Comhaltas
functions and centres. In return, IMRO agreed to make annual "financial
subventions" to Comhaltas to a total of £250,000. As part of the agreement,
IMRO also agreed to refer all requests for support for Traditional music
to CCÉ. An additional sum of money, a "financial subvention" of £125,000,
was also included, going to Brú Ború, a cultural centre affiliated to CCÉ
and run by Labhrás Ó Murchú's wife.
The transformation of the official position of Comhaltas from
complete opposition to complete alliance was nothing short of
spectacular. Ultimately, all resistance to IMRO's activities among
traditional musicians and others was rendered ineffective by the
Comhaltas' agreement which legitimated IMRO's claims to jurisdiction
in the "traditional" domain. But how can we begin to make sense of what
On the one hand, we can take the legal route. We can do what
Comhaltas did, and accept the claims to jurisdiction made by the
Irish Music Rights Organisation with regard to session culture. We
can acknowledge and respect IMRO's government-sanctioned monopoly.
We can learn the law, abide by the law, claim ownership, recognise
ownership, consult a lawyer when necessary, and obey - obey IMRO, obey
the law, obey the courts, obey the government, obey the State. We can
go around becoming increasingly aware of copyright and performing rights,
and increasingly aware of the economic potential of the sounds we make
and enjoy. This option poses no challenge to the largely unquestioned
status of intellectual property, copyright, or performing rights and
the impact of these on traditional musicians lives.
On the other hand, we can pose at least two lines of
questioning with regard to these issues. A first might be to
question the validity of performing rights at all. Performing
rights are not specifically mentioned in the Irish Copyright
and Related Rights Act, 2000. Copyright is mentioned, and performing
rights sort of have something to do with copyright, and something to
do with "making a work available to the public", but nowhere is this
made clear, in legislation or in the relevant literature. It seems to
be simply assumed by all involved that there is a fundamental logic
to performing rights and that it makes sense. There may not be any
solid basis in logic for the operations of performing rights agencies
at all. Yet, the rhetoric of copyright and performing rights continues
to guarantee most financial turnover in the music industry worldwide,
and the end, as ever, justifies the means.
One thing that is hardly ever noticed is that the supporting
rhetoric for performing rights royalty enforcement runs a little thin.
For example, the terms "music", "music use", "musical work", or
"performance" are never defined, either in Irish legislation or
in literature provided by the Irish Music Rights Organisation
(except maybe in circular terms, where "music use" is what "music users"
engage in, and vice versa). The licences themselves are for the "use"
of a product, but the product itself is never specifically identified,
residing somewhere among the terms "work", "music", and "performance".
Nobody ever asks for more specificity than this, because it is always
assumed that someone somewhere must have verified that the whole
performing rights deal is above board and verifiable. It is simply
assumed that these terms provide a safety net of solid justification
for the organisation's activities.
A second line of questioning might be to interrogate the
conflicts that arose with regard to traditional music in Ireland
in terms of conflicting values, and ask how it was that a musician
could declare the operations of performing rights "alien to the whole
culture". Intellectual property constitutes a rigid set of traditions
rooted in possessive individualism ("It's mine. It's not yours.").
The logic driving operations such as IMRO is based upon assumptions
that human nature is essentially self-interested, that the world is
little more than economic checks and balances, that intellectual
property is a universal truth, and that it's okay to force people
to accept your ways of thinking instead of their own. Intellectual
Property, copyright, and performing rights are doctrines, creeds.
They imply the declaration "This is the way it is! Think this
way (or else!)". As traditions they foster conflict, distrust,
and certain paranoid anxiety about theft, ownership, and the
all-seeing eye of Big Brother.
In contrast, there are other traditions which value the complexities,
subtleties, and variables of personal experience, in complete contrast
to the "universal truths" of the party line. Traditions in which
relatedness and relationship are not only acknowledged but fostered
and facilitated. Where respect, humility, gentleness, generosity,
and compassion are important. Where absolute authorities or certitudes
have no place among friends. These and other similar "traditions"
constitute a powerful politics for being human, a powerful politics
with which to counter unhelpful, propertizing, commodifying changes
in our own particular experience.
It's not about some inevitable march of modernity against which
we have no power or influence. It's all people. People doing what
people do, and that includes us. It comes down to asking ourselves,
"What do we want our kids to learn about life?" It is as real as that.
Are we systematically forgetting, ignoring, or wilfully
turning away from powerful and humanizing politics, and replacing
them with the ready-made traditions such as those of intellectual
property, copyright, and performing rights. And do we do this
in deference to the law because we are often led to believe,
by way of persusasion, coercion, and maybe a little self-interest,
that we should?