copyright expiration as a spur to creativity

In his review of R. H. Cromeck's _Reliques of Robert Burns_, (Cadell and Davies, London, 1808) Walter Scott wrote:

     Neither would it be easy to mark [Burns's] share
     in the individual ditties.  Some he appears to
     have entirely re-written; to others he added
     supplementary stanzas; in some he retained only
     the leading lines and the chorus; and others he 
     merely arranged and ornamented.  For the benefit 
     of future antiquaries, however, we may observe
     that many of the songs, claimed by the present
     editor as the exclusive composition of Burns,
     were, in reality, current long before he was born.
     Let us take one of the best examples of his skill
     in imitating the old ballad,--McPherson's Lament
     was a well known song many years before the Ayrshire
     Bard wrote those additional verses which constitute
     its principal merit.  (_Quarterly Review_, Vol. 1, 
     Number 1, February 1809, p. 30.)

This is a concise description of Burns's use of the public domain, a use which includes not only the copying of form, diction, and subject matter, but also sometimes of whole lines and stanzas, as well as melodies.

Some might argue that Burns "could have" written plenty of original work without copying from the public domain. Some might argue that Burns's work on Scots song was a distraction from other, better work. Indeed, in the same review which has already been quoted, Walter Scott argues,

     We cannot but deeply regret that so much of his
     time and talents should have been frittered away
     in compiling and composing for musical collections.
     There is sufficient evidence both in the edition
     of Dr. Currie, and in this supplemental volume,
     that even the genius of Burns could not support
     him in the monotonous task of writing love verses
     on heaving bosoms and sparkling eyes; and twisting
     them into such rhythmical forms, as might suit the
     capricious evolutions of Scotch reels, ports, and
     strathspeys....The writing of a series of songs for
     large musical collections, degenerated into a 
     slavish labour which no talents could support, led
     to negligence, and above all, diverted the poet
     from his grand plan of dramatic composition.  (_QR_,
     Vol. 1, Number 1, February 1809, p. 32.)

To say that Burns "could have" done more, or better, if he had not been allowed the use of the public domain is of course easy to assert and almost impossible to prove or disprove. But whatever Burns "could have" done, copying from the public domain to produce some of his most famous work is what in fact he did. Burns's own view of songwriting, furthermore, was much more optimistic than Scott's. Burns noted in his commonplace book that

     These old Scottish airs are so nobly sentimental,
     that when one would compose to them, to "south the 
     tune," as our Scotch phrase is, over and over,
     is the readiest way to catch the inspiration, and
     raise the bard into that glorious enghusiasm so 
     strongly characteristic of our old Scotch poetry.  
     (_The Complete Works of Robert Burns_, Ed. Alexander
     Smith, Crowell, New York, 1887, p. 298.)

Copyright law, in any case, does not concern itself with critical evaluations of each single work produced. Rather, it insists on freedom and fairness. Just as Robert Burns and James Johnson (one of Burns's publishers) were allowed complete creative and commercial freedom to use prior authors' poetic and musical art, subsequent generations must in their turn be allowed free use of the work of Burns and Johnson.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Fri Jan 15 1999 - 23:54:20 GMT