Re: Excellent paper on 'Copyfraud'

[Mike Blackstock]

re. "If I now would want to make an edition of that work..."

According to Mazzone "Two basic features of copyright law are that (1)
copyright belongs
to the creator of an original work, and (2) copyright protection is
limited in duration. Copyright notices appear today, however, on
virtually everything that is published—whether or not there exists a
legitimate claim to copyright ownership... In order to receive
copyright protection, a work must be the author’s own creation,
displaying some minimal degree of creativity. Mere exertion—'sweat of
the brow—does not a copyright confer." (p. 13)

And, crucially: "Despite the fact that copyrights are limited by time
and original authorship, modern publishers routinely affix copyright
notices to reprints of historical works in which copyright has
expired. The publisher making the reprint is not the creator of the
original work; absent a transfer by the creator of the work, the
publisher would not be entitled
to claim copyright in the first place. And since the copyright on the
original work has expired— indeed, that is the very thing that allows
the modern reprint to be made and sold—the work is in the public
domain." (p. 15)

As for editorial additions to a public domain score, the IMSLP page
has good guidelines (for Canada, at any rate):
http://www.imslp.org/wiki/Public_domain

Editorial additions must not be "routine", but require a "threshold of
originality" to qualify for copyright protection:

"Insignificant editorial contributions have no copyright in
themselves. Significant ones often do. The editor's contribution to
the work must be of a significant and original nature, meeting a
"threshold of originality," to qualify for copyright protection. Some
examples:

- Most Significant: Transcriptions, orchestrations, arrangements,
creative realizations of continuo or figured bass parts.

- Less Significant: Adding original (new) fingerings, articulations,
slurs, dynamic and tempo markings, routine chordal realizations of
figured basses.

- Insignificant: Transposition, error correction, translation of
common expressions and instrument names.

- Insignificant: Adding fingerings, articulations, slurs, dynamic and
tempo markings from other public domain sources."

Hope that helps. Of course, if you are publishing online and your ISP
is clueless about the DMCA - and sadly, many are - then much of the
above discussion is moot :(

On Sat, Mar 9, 2013 at 12:31 PM, Urs Liska <address@hidden> wrote:
> Am 08.03.2013 14:18, schrieb Mike Blackstock:
>>
>> This paper might be of interest to anyone typesetting public domain
>> music from so-called copyrighted scores:
>> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244
>>
>> Abstract:
>> "Copyfraud is everywhere. False copyright notices appear on modern
>> reprints of Shakespeare's plays, Beethoven's piano scores, greeting
>> card versions of Monet's Water Lilies, and even the U.S. Constitution.
>> Archives claim blanket copyright in everything in their collections.
>> Vendors of microfilmed versions of historical newspapers assert
>> copyright ownership. These false copyright claims, which are often
>> accompanied by threatened litigation for reproducing a work without
>> the owner's permission, result in users seeking licenses and paying
>> fees to reproduce works that are free for everyone to use. "
>>
>> 75 pages, PDF - Jason Mazzone, University of Illinois College of Law
>>
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>
>
> May I suggest a concrete example for consideration (because it's a tricky
> constellation and I'd appreciate any opinion)?
>
> Given a musical work that is clearly in the public domain (1820s).
> The autograph score is in private possession (in Switzerland).
> The contents of this autograph have been brought to the public through a
> 'private print' (by a renowned scholar) in 1967.
> I don't know how many copies there are from this private print, but some of
> them are available through public libraries (where I had the opportunity to
> take digital photographs).
>
> If I now would want to make an edition of that work, and explicitely the
> version of that manuscript, would I have to ask the owner of the manuscript,
> or could I argue that the music is in the public domain and the manuscript
> has already been made public?
>
> Would a claim of the owners of the manuscript to either charge royalties or
> prohibit the project be a valid cause or would you consider that copyfraud?
>
>
> Urs
>
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