"You Have to Strike That Balance between Sharing and Charging": Cape Breton Fiddling and Intellectual Property Rights

Article excerpt

This article will discuss the concept of musical ownership and copyright in the Cape Breton fiddling tradition. Intellectual property rights have become an increasingly important issue in recent years and represent an intersection between the commercial music industry and vernacular tradition. As such, the way boundaries are constructed in regard to repertoire and ownership is subject to debate. On one hand, some discourses favor the rights of the individual, arguing that intellectual property should be protected, acknowledged and subject to financial compensation. Other perspectives favor the rights and needs of the community, valuing free exchange.

Cet article discutera la propriete musicale et le droit d'auteur des violoneux traditionnels de Cap Breton. La propriete intellectuelle est devenue une preoccupation de plus en plus centrale ces dernieres annees. Elle marque une difference entre l'industrie de la musique commerciale et la tradition vernaculaire. De fait, la maniere dont le repertoire et la propriete sont construits est sujette a debats. D'un cote, certains discours favorisent le droit des individus en affirmant que la propriete intellectuelle devrait etre protegee, reconnue et remuneree. D'autres perspectives favorisent de leur cote les droits et les besoins de la communaute et valorisent plutot la gratuite des echanges.

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The Cape Breton fiddling tradition has its origins in the music of Highland Scots who migrated to the island during the Clearances, and an ongoing relationship to Scottish, or more specifically, Gaelic culture has remained to this day. As such, the tradition is closely associated with piping traditions (Shears 2008), and many tradition bearers stress the music's ties to the Gaelic language (Shaw 1992-1993; Spading 2003; Graham 2006). Cape Breton fiddling's connection to dance is also significant and is a topic discussed by a number of scholars (Feintuch 2004; Melin 2012). Over time, the music has grown to be not simply an offshoot of Scottish fiddling, but a tradition in and of itself and has included influences from other musical traditions. No longer are Cape Breton fiddlers exclusively of Scottish ancestry; prominent fiddlers of Irish, Acadian and Mi'kmaq backgrounds have made substantial contributions to the tradition. The fiddling tradition is now a prominent symbol of the regional identity and has become entrenched in tourism (Ivakhiv 2005; Lavengood 2008) and popular culture (Hennesey 2008; Herdman 2008).

While such cultural commodification is certainly not new, it has become more evident in recent years. For instance, commercial recordings of Cape Breton fiddling date back to 1928 and peaked in popularity on an international level during the 1990s. As Ian McKinnon notes, earlier Cape Breton fiddle recordings were made not for financial gain as much as public recognition (1989), but as he and Doherty (1996) explain, there is an increasing sense of professionalism among these musicians. An important part of such recordings is repertoire, and choosing which tunes to feature on an album is something that is not taken lightly. Composition has enjoyed a long history in Cape Breton, so does the nature of composition and intellectual property rights.

Using the Cape Breton fiddling tradition as a case study, (1) this paper addresses some of copyright law's shortcomings in relation to traditional music and the strategies employed by musicians to modify conventional copyright practices to better suit their needs. Music copyright is generally quite effective for dealing with popular music; however, it is a system that is not necessarily compatible with traditional musical forms. Notions of musical ownership change according to context, and the way in which such ownership is negotiated marks the boundaries between the commercial music industry and vernacular tradition. On one hand, there are discourses that favour the rights of the individual, arguing that intellectual property should be protected and acknowledged, and that the creator should receive compensation for the use of a work. …