La Propiedad Intelectual, ¿dominio público? / Intellectual Property, public domain?

(Article published in the magazine Doce Notas, June 1997)


In a recent article, entitled The national anthem, private property, and published in EL PAÍS on April 29, its author, the well-known journalist Miguel Ángel Aguilar, denounces the, in his opinion, scandalous situation in which the Spanish national anthem is, after realizing that two people, Mr. José Andrés Gómez and Ms. María Benito Silva, received between 1990 and 1992 the not insignificant amount of 15 million pesetas as royalties for the interpretation of said anthem. The background, more than the content, of the aforementioned article led me to write some hasty notes that I sent to said newspaper, with the request that, given its length, they would also be published in the form of an article. But a few days later they told me by telephone that its publication was impossible, since it was the newspaper's rule not to enter into this type of controversy in that way, and suggesting that I write a reduced version for its publication in the section "Letters to the Director", which took place on May 11.
The reduction of the initial article was a real exercise of resignation, as I was forced to give up many of the initial ideas, adapting it to the form of a "letter" -you know, no more than 30 lines-. While I was doing it, I swore to myself that I would retaliate with a new article that would enrich the original with the new considerations that its writing had led me to, and that due to haste were not reflected in it. What follows, idle reader, is the result of all this.

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We Spaniards cannot boast of having a "signature" anthem, as happens in other countries -Austria's is attributed to Haydn, no les-; ours was not even composed by a Spaniard, but, apparently, by a German musician, at the end of the 18th century. However, it has a magnificent orchestration, made by the composer Bartolomé Pérez Casas (Lorca, 1873-Murcia, 1956), which is the one usually performed by our orchestras -when the occasion so requires- or, failing that, reproduced thanks to its recording, both on radio or television, as well as on all those solemn occasions when there is no orchestra available.
Mr. José Andrés Gómez and Ms. María Benito Silva were nothing but faithful friends and domestic servants, respectively, of Pérez Casas. They must have been so faithful to D. Bartolomé that, before dying, he bequeathed them ownership of the rights generated by his orchestration of the Spanish national anthem.
The old Intellectual Property Law (of 1879), like the current one (of 1985), recognized the authors of arrangements of musical works (understood as such, among others, the instrumentation and orchestration) as holders of the rights that the interpretation of said arrangements generated. In this sense, it should be remembered that the previous Law protects intellectual property throughout the life of the author and up to 80 years after his or her death (the current law lowers this figure by 10 years), so that, once this occurs, they become owners of said property the successors or legitimate heirs of the author. After this date, the work enters what is called "public domain".
It is necessary to distinguish, therefore, between two types of author: that of the original work, and that of the arrangement or arrangements that, where appropriate, are made of it. And as for these arrangements, it is possible to differentiate between two other types: that of works that, either because their author lives, or because the established period of time has not elapsed since his death, cannot be carried out without the express consent of the author or his legitimate heirs, and that of "public domain" works. The case that concerns us is located in the second of both assumptions, since Pérez Casas limited himself to arranging, transcribing for orchestra, a public domain work.
In this regard, the Spanish national anthem, like any musical or poetic composition whose existence has exceeded the legal time of intellectual property protection indicated above, is in the public domain in the chrematistic sense of the expression: it does not belong to anyone. However, unlike what happens with the works of any composer whose music, because the aforementioned legal protection of his work has ended, can be manipulated by anyone, the hymns, both of the State and of the different Autonomous Communities, enjoy a special integrity, imprescriptible, which is conferred by the official character that supposes the approval of its text and its music (the melody and its harmonization) by the corresponding Government, a character whose validity begins, as usual, with its publication in the Official State Gazette.
Now then: a hymn needs a materialization that allows its presence on all those occasions whose solemnity requires it, which justifies the existence of different arrangements: for military bands, symphonic bands, more or less large orchestral ensembles... The hymn, therefore, can and should be adapted, as long as none of the factors that enjoy the "officiality" referred to in the previous paragraph is modified.
(One of our most distinguished and internationally recognized composers, Cristóbal Halffter, told me some time ago that, on a certain occasion, he was commissioned to orchestrate the national anthem, so that it would be performed at an important event. Knowing his mastery as an instrumentalist, I am sure that his work must have been magnificent, and if, apparently, it did not prosper, it was because he committed the "outrage" of substituting the "official" harmonization for a surprising modulation in the last bars [see and touch the example that illustrates this article], which -encouraged by an eminent critic, now deceased- was about to cause him a problem with the Justice.)


Harmonization by Cristóbal Halffter for the last bars of the national anthem.
Note the modulation to E flat major that precedes the Neapolitan 6th of C major.


This adaptation requires, in turn, the work, knowledge and skill of a composer, since Instrumentation and Orchestration are disciplines -not easy to acquire, by the way- attached to Composition: hence their study is linked only to this specialty in all the curricula of all the conservatories in the world. And it is clear that the composer to whom the instrumentation is entrusted has the right, both to receive a decent remuneration for it, and to register his arrangement and receive, henceforth, the rights that correspond to him for the use made of it; rights that, it is clear, do not belong to the author of the hymn, but to the author of said arrangement, and that, upon his death, his heirs may continue to receive during the time established by Law. It is clear, therefore, that it corresponds to Mr. Bartolomé Pérez Casas, solely and exclusively, the authorship of said orchestration, and his current heirs the rights that the Law indicates on it.
In his article, Miguel Ángel Aguilar assures that, after having discovered what was never hidden, he brought it to light through a job he directed for the news program Entre Hoy y Mañana, broadcasted by Tele 5 in the early hours of November 12, 1993. With this, according to what he says, the scandal began: the news gave rise to a parliamentary question formulated to the Government by the then deputy Diego López Garrido, to which the then Minister of the Presidency, Alfredo Pérez Rubalcaba, responded. and in which, naturally, the facts were confirmed (what else could be done?).
The surreal begins next: if we are to give credit to Miguel Ángel Aguilar, the socialist government itself made this matter a "cabinet issue", commissioning the Royal Academy of Fine Arts to take action on the matter (!?) and, according to what he affirms, promoted a new orchestration that, apparently, was made, rehearsed... and never heard of again, as happened to poor Fernández in the story over and over again. Without a doubt, Pérez Casas's orchestration was better than the new one. Or, perhaps, someone decided to impose common sense and noticed that the newly created orchestration would neither replace the previous one -which, on the other hand, nothing and no one forced to interpret-, nor would it solve the problem, since, once registered by its author, would begin to generate new rights for him and his heirs that, in this case, would prescribe at the end of the 21st century, instead of doing so in the year 2036, that is, in the 80th anniversary of the death of Pérez Casas (because it never occurs to anyone to think that the composer did his work for free, or that, if he had, he was going to give up the rights that corresponded to him). If it is true that the previous government promoted such a blunder, it is fair to applaud the current government for its "indolence" in this subject, no matter how reprehensible it may seem to Mr. Aguilar.
All this is but a more or less comic anecdote, one of the many that animate the gatherings thanks to the tenacious work of some journalists. But, for me, it is tinged with a tragic point, since it comes to demonstrate: a) the lack, on the part of the aforementioned journalist, of documentation about the current regulations on intellectual property and copyright, inexcusable in whom, it is supposed, has to continually move between copyrights; b) the worrying facility of our politicians to adopt decisions motivated by false scandals, without even these being evident: what is the scandal here? That the national anthem generate royalties, or that they suppose a not insignificant amount, and that this is collected by a retired domestic worker?; and c) the lack of rigor with which, in general, the composer's work is valued today.
Personally, it seems to me much more scandalous that nobody discusses, at the same journalistic level, the attitude of the "smart guys" who do not hesitate to "adapt", for the mentally handicapped and ad majorem gloriam of their current accounts, the most famous pages of the History of Music, or that of the "fine" businessmen who use them as an elegant musical background for the ad for the car of the year or for a new brand of yogurt. Of course, my scandal is purely aesthetic, since it focuses on the integrity of the work of art (all the more, it leads me to claim respect for it), while the one proposed by Miguel Ángel Aguilar would enter the field of ethics, but linking, somewhat demagogically, the symbolic values of the country (you know: the anthem, the flag...) with the apparently dubious character of an investment fund that intellectual property, understood as capital that generates an income, can be invested when it yields -rarely- good dividends (which leads him to demand, implicitly, that the appropriate legal measures be adopted to put an end to the collection of certain copyrights).
Can the reader imagine an article in which the right of the red and yellow flags manufacturers to charge for their work is called into question, on the grounds that only love for the country should inspire the production of such an ingrained symbol? What Miguel Ángel Aguilar's article comes to discuss, deep down, is the simple existence of intellectual property and the legitimacy of copyright...
Faced with this increasingly generalized opinion, it is surprising that there are more and more interested in composition among our music students. The future of all of them, as well as that of all my colleagues and my own, together with that of the legitimate heirs of those who preceded us, is what moves me to write these lines, with which I only aspire to put things on its site and to ask both that the right to intellectual property be respected, and that the benefits derived from its correct use not be questioned. Otherwise, there will soon be those who say that the composer must work for little less than nothing (yes, always out of love: sometimes for Art, and sometimes for the Homeland). Sooner or later we will see it.

May 1997