I'm at the current age where I would hope to outlive Mozart. He had a late January birthday, and died in early December; I was born on the Ides of January, so I need merely reach the forthcoming Kalends of December to surpass the dreaded day, and be able to recite the well-known Tom Lehrer gag regarding his own creative output, versus Mozart’s*. Astute Brianists will be aware that falling close by this date is 28 November 2007, the 35th anniversary of the death of Havergal Brian. This point also approximately marks (for most of the world) the halfway point of Brian’s copyright “life after death”. 

The current state of play in the UK is that an author’s copyright extends to “life plus 70”. For Havergal Brian this results in a copyright term of 166 years, whereas had similar laws been in effect in Mozart’s time his works would have been protected under a much shorter term of 105 years. This isn’t the time or place to go into the fairness of these laws, but it is sufficient to observe Mozart’s widow and children would have been set up for life had copyright laws allowed them to exploit the continuing interest in Mozart’s music after his death. What I want to ask at this point is whether Brian’s cause is being helped or hindered by the handling of copyright in respect of his works.

How does copyright help a composer (or his estate, “heirs and successors”) financially? Nominally through the sale of music he or she receives a contractually negotiated return from the publisher; for public performance of a work it is normal to pay performance rights or grand rights, which again usually returns some proportion to the composer; and likewise payments for recordings or radio and television broadcasts are usually controlled by performing rights societies that collect and distribute royalties. So how do these returns help Brian’s music at present?

Sale: since pitifully few of Brian’s 100+ extant works are currently available for sale, and the attitude of UMP—if I understand the HBS’ dealings with them correctly—is that the scores produced by the Scores Sub-Committee will be for hire and not for sale, then it is evident the Brian estate would receive very little from music sales. Many works that were printed once upon a time could potentially be available as “print on demand” works, however generally they are not.

Performance: these have been very few and far between. The number of conductors willing to perform Brian’s music is still vanishingly small and the even smaller number of performances is partly related to the ability to procure the music to study and form mature judgement on its worth, alongside any other comparable selection of neglected music by under-represented 20th century composers. The sale of music has an intrinsic bearing on Brian’s visibility as a composer. For example, the Hanson-Dyer Library at the University of Melbourne has one of the finest collections of scores and reference material in Australia: despite this, while it is easy to find nearly a dozen books about Brian, the number of scores to peruse is limited to just four (Cranz’s Tigers VS and Gothic FS, and facsimile copies of the “Altarus” and “Strassburg” symphonies). The availability of photocopies of late Brian manuscript scores in private hands is not really a recipe for dissemination of his works!

Recordings: while we cannot thank Klaus Heymann and HNH enough for the Marco Polo Brian series, it is to be hoped the cycle may resume once all of the Marco Polo discs have been reissued on Naxos, since it is hard to imagine the large companies such as EMI or Universal returning to large-scale, expensive recordings of non-repertoire pieces when it is so comparatively easy for them to rest on their laurels by exploiting their back catalogue. So will The Tigers or The Cenci ever be performed again for commercial recording? Agamemnon surely stands a chance considering its brevity, but what of Turandot and Faust—other than the likely recording of the orchestral suites excerpted from them (gratiae Brian et MacDonald)?

Broadcast: any royalties for the Brian estate from broadcast are necessarily limited by the factors of performances and recordings above, and therefore must surely be contributing negligible amounts. A sad feature of all of those BBC broadcasts is that the BBC’s attitude to commercialising its resources really only changed in the recent two decades. Had matters been different back in the 50s or 60s one imagines several of the BBC recordings might have been officially released (rather than being pirated in the US by the Aries label). It is hard to estimate what effect the Boult Gothic, or the Newstone reading of Symphony 7 (both from the annus mirabilis of 1966) might have had on Brian’s fame, had they been committed to records within Brian’s lifetime rather than ephemeral broadcast.

In 1974 Malcolm MacDonald wrote: “Thus a thorough knowledge of his music has, of necessity, been confined to a tiny number of enthusiasts, with all the suspicions of special pleading that entails.” (The Symphonies of Havergal Brian, volume 1, page 8)—and except for the widespread availability of some remarkable commercial
recordings, I would argue the current level of activity within the HBS and total membership is evidence that Brian’s cause has not made the huge advances that might have been hoped for in the intervening 33 years. I hope this isn’t too negative a view, but until Brian’s works are performed relatively commonly I believe it premature to say Brian has found a secure place in Western music.

To turn to the present and future. A very recent development on the Internet is the establishment of collaborative databases and libraries of public domain works, or of works with generally permissive copyright terms. A movement called “Creative Commons” has worked to create a set of copyright licences that lawfully permit use and reuse of copyrighted works while retaining a range of possible restrictions. The works under the licences are then freely available—free in the sense of “free speech” (ie expression), not “free beer” (ie cost), it need be said—and artistically, it provides for authors to adapt or inherit ideas from other authors without the bogey of copyright infringement hanging over that usage. Such licences are not for everyone—some authors will still wish to zealously protect their works—but generally, no author or composer can claim not to have gained some artistic or stylistic influence from the examples of others. The reuse of artistic styles and techniques is the lifeblood of the creative arts, and so this movement is an attempt to counter the tendency for ever more confining and restrictive copyright laws worldwide. A concrete example: had there been a creative commons licensed version of the translation of Oedipus Coloneus available in 1960, there might have been a sixth Brian opera, possibly at the cost of the Symphony 30 as we know it!

To return to the Internet. I would like to draw your attention (if it hasn’t been already) to the website of the International Music Score Library Project at imslp.org (now Petrucci. - Ed.). It aims to provide downloadable sheet music of any conceivable public domain work, as well as copyrighted works provided they are licensed under one of the creative commons licences. In little over a year, it has become a rich resource for any interested listener or performer of music: for example, most of the 40 volumes of the 19th century Bach Gesamtausgabe is available at a few clicks. The quantity of music available will only increase: the International Mozarteum Foundation website in Austria (dme.mozarteum.at) is already offering the entire Neue Mozart Ausgabe published by Bärenreiter—much of it protected by copyright—for free download provided that the end-user agrees to do so only for private study purposes. Owing to the quirks of national laws and that imslp.org is hosted in Canada, there is a project to make almost the entire corpus of Jan Sibelius’ music available there early in 2008—Canada’s copyright term is “life plus 50” and this year marks 50 years since Sibelius’ death.

How does this fit in with Brian? There are several interrelated issues.

1 Brian in the US

Historically, the US has had unusual copyright laws; albeit a gross simplification, essentially any work published prior to 1923 is in the public domain in the US. Of Brian’s early work, one piece is currently available at imslp.org—but hosted on a server located in the United States. (It happens to be the Three Illuminations for
piano, first published by J&W Chester in 1917.) There is nothing to prevent an avid collector of Brian’s music based in the US from also making available the six early orchestral works published by Breitkopf and Härtel (B&H) in 1914 (For Valour, English Suite 1, Festal Dance, Fantastic Variations, In Memoriam and Doctor Merryheart), nor from making orchestral parts of those scores available. This also applies to much of Brian’s songs, partsongs and other vocal and choral works published variously by B&H, Bosworth, Novello, Chester, Curwen, and Augener prior to 1923, and from 2010, the Cranz Gothic symphony also.

Far from the genie being released from the bottle—making these works freely available in the US doesn’t alter their status in any other jurisdiction in terms of the sale, performance, broadcasting, or recording rights. If I, living in Australia (where “life plus 70” terms now apply) were to download the score of Merryheart or the three Opus 6 songs for baritone, and perform them, I could rightfully be prosecuted if I had not taken steps to secure the appropriate rights from UMP. I don’t see that it therefore follows that performing organisations outside the US would risk being caught out by the relative cheapness of downloading scores; piracy already exists at the small level and probably always will. If Brian’s music is to gain wider performance it needs to be known—and having a range of scores to freely peruse, if not to freely perform, must surely be some impetus towards this. Unless one has a library well-stocked with Brian’s scores, the cumbersome procedure at present is to
write to UMP for a study score to be sent. I leave it to others to advise how frequently this actually occurs in real life.

2 Post-1923 Brian outside the US: Creative Commons licensing?

The rights of almost all of Brian’s music are currently handled by United Music Publishers, presumably in accordance with the wishes of the Havergal Brian Estate. The copyright laws of the UK permit them to exploit the works for the next 35 years, should they wish. Are they going to actually bother publishing the works (as they
gradually emerge from the SSC’s typesetting workshop) or are they content to sit on them for that time, simply waiting for an orchestra to decide to perform one of them, more or less sight-unseen? The scores of several symphonies and orchestral works thus typeset have been lodged with UMP for some time now, so has there been any interest other than requests for specific pieces? My guess would be that such enquiries could be numbered on one hand. It is up for the Estate to judge if this is a satisfactory state of affairs, but unless I have misread or misinterpreted the situation, I would be inclined to think it not.

One of my articles would not be complete without some controversial suggestion, so here it is. Why not leapfrog the current 20th Century style of publishing Brian’s works? The Naxos and Marco Polo discs are already on the iTunes Music Store for purchase, conveniently downloadable into one’s iPod with several clicks; why not make Havergal Brian’s music freely perusable on-line, to increase awareness and recognition of his works? In the long run the increased visibility of Brian as a composer of major standing would drive sales of the printed sheet music, which UMP still finds considerable difficulty in shifting from its shelves. The iTunes Music Store suggests a model for this, since it is usual to sample a 30 second “sound bite” prior to purchase. The obvious analogue for a musical score is a single movement or section of a multi-movement/section work, or for shorter works an example page or two. The technical means for this could be the Portable Document Format (pdf) for facsimiles of Brian’s manuscripts or mechanical or computer typesets, whereas for the works already completed by the SSC, a specific web browser plug-in (Scorch) allows the Sibelius typesetting to be rendered on screen.

What copyright status ought these samples have? I mentioned that the creative commons licences have a variety of restrictions that may be imposed at the discretion
of the rights holder. In plain language, these include:

• Attribution (by). You must attribute the work in the manner specified by the author.

• No Derivative Works (nd). You may not alter, transform, or build upon this work.

• Non-commercial (nc). You may not use this work for commercial purposes.

The IMSLP website has one further gloss on this, as the creative commons licences are generally not oriented at performance arts:

• Performance Restricted (pr). This licence does not allow public performance/broadcasting/recording of the work.

In all cases the conditions may be waived, but crucially, only with the permission of the rights holder. It is my belief that this set of restrictions would cover the majority of possible objections, or reservations that most rights holders would have about making such samples available on-line. While I would prefer to see as much of Brian’s music available under the terms of the combined licence (by-nd-nc-pr) I have no illusion that it will be so in the near future.

3 Brian in Canada: “life plus 50”

Don’t forget the IMSLP: unless the Canadian law changes in the next 15 years, then much of Brian’s published work will enter the public domain there in 2023, or soon after. According to Canadian law, the only exceptions are unpublished works, and new typesets involving some level of editorial input. Although Musica Viva and UMP have published a variety of Brian’s manuscripts after his death, these will qualify for only a slightly more favourable term of copyright under Canadian law by virtue of having a post-1972 copyright, which confers a term of 50 years from the date of posthumous publication; thus most of these will be in the Canadian public domain by 2030. As for new typesets, the UK observes typographical copyright but only confers a 25-year term of editorial copyright from the year of publication. Come 2023 one would reasonably expect someone in Canada or elsewhere to upload a scan of the Cranz Gothic amongst the remainder of music printed in Brian’s lifetime, at which point the horse may be said to have bolted. (Edit 2012 - this has now happened.)

In the essay I wrote for Newsletter 174 I touched on the issue that no conductor in his or her right mind would prefer to work from Brian’s manuscripts rather than legible, proffered, typeset scores, a view I still hold to be true. The rate at which the SSC can prepare such scores is severely limited by the membership of the team, which all up is probably not many more than a dozen volunteers. So a related suggestion would be to progressively make various Brian manuscripts available online under the restricted creative commons licence. This could radically increase the number of interested typesetters or proofreaders available to the SSC, while the “No Derivatives” clause gives the UMP full control over anyone who might attempt to make or distribute their own typeset (partial or full) without having asked for permission for that condition to be waived. The facsimiles of symphonies 10 and 15 are the only two of the full symphonic oeuvre that may be purchased, along with
the violin concerto and Faust, presumably as stocks of the other facsimiles have sold out: I really doubt those that sold out will be reprinted. This radically limits the circulation of Brian’s music.

Is anyone really going to purchase the A3 facsimile of Faust at £220, when the work has never been performed in full and there isn’t a single note of it to be heard outside the Mackerras recording of the Prologue, available only to HBS members through its Recordings library (or bootlegs thereof)? By definition, that must be a niche market. It appears to me that £220 might be equivalent to the going rate for UMP to employ someone keeping guard over a photocopier as it churns out a copy from their “master” copy of the facsimile. Surely Brian would be better served by internet publishing these days, rather than the laborious and expensive old fashion of printing actual sheets of paper? If on the other hand the facsimile work were scanned into computer rather than just photocopied one-to-one, the flexibility is subsequently available for print-on-demand requests: an orchestra might want to assess the feasibility of the work by asking for just one of the Acts of an opera, or
the most thickly scored section of an orchestral work.

Aside from this, Brian’s manuscripts are often the only finally realised form for the works since so few of them were published, so the process of scanning them is actually worth the effort for safeguarding them against further damage—from the scores becoming irretrievably lost like so many of Brian’s early works, or large scale manuscripts such as the full scores of Prometheus Unbound and the Gothic’s Te Deum. The potential is there, awaiting only the resolution to realise it.

NL193 © 2007 Philip Legge

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