Hi Notenschreiber,
So, it's a bit complex. Of course, Heinrich Döbel lived and died in the 1600s, and thus his lifetime never overlapped with the existence of the modern concept of copyright at all, let alone the Berne Convention. Not only did Döbel live before copyright law existed, he also lived before modern nationality law really came to be defined, which might be problematic, too, for determining the relevant law. Nevertheless, I think it's
OK for IMSLP — and here's my analysis.
Heinrich Döbel was born and worked in Gdańsk (Danzig). At the time, the city was part of the Kingdom of Poland, within the Polish-Lithuanian Commonwealth, as it would be for his entire life. He also went and worked in a few other cities in Europe during his lifetime. Of course, the Polish-Lithuanian Commonwealth would later be dissolved, and the city would end up in the Kingdom of Prussia, then the unified Germany, then become a city-state, then be annexed by Germany again before finally becoming part of Poland after World War II (where it's remained since). Döbel worked for the Polish royalty and nobility of his time, and he had a German name, to make things more interesting.
In all likelihood, these works
were performed, even if we do not have a specific record of this. The works of court musicians tended to be performed in court concerts. Additionally, the fact that a manuscript copy ended up in Kroměříž would seem to imply that the work was publicly disseminated, seeing as Döbel did not work in Kroměříž; these copies were not from his personal papers, and it's hard to imagine they were copied and not performed along the way.
Furthermore, this manuscript copy is evidence of publication in the EU and US.
IMSLP-EU is in Germany, so German law is usually what we take into consideration here (between EU jurisdictions). Whether we are interested in Polish or German copyright law, however, these pieces themselves are definitely in the public domain in both Poland and Germany. The following reasons apply:
- In German law, at least, the copying itself can constitute publication. This was the determination in the Motezuma case, at least. That case involved an opera (which was definitely performed) which was copied in manuscript form. The court determined that this was publication. So I would
- Under the EU directive (and German/Polish law), the copyright per se in a work expires 70 years after the author's death. The economic rights associated with a first publisher are related rights, not copyright per se. This might be relevant when we get to talking about Canada (more on that in a bit).
- In any case, even if A-R Editions' 1997 publication was a first publication under EU law (which it probably wasn't), its 25-year economic rights have expired.
In Canada,
assuming that works this old are even potentially protected under Canadian copyright law:
- As mentioned before, this work was presumably performed publicly in the 1600s.
- Failing this, the work may be considered published by having been copied in manuscript form to various collections (including the extant copy in Kroměříž).
- Failing this, the expiry of the copyright term (as opposed to the related rights term, which Canada does not recognize) in the composer's country of nationality (whichever country it might be, between Poland and Germany) before 2022 should mean that a copyright in Canada cannot be claimed due to Canada's former rule of the shorter term.
In the United States,
assuming that works this old are even potentially protected under US copyright law:
- Copying constitutes general publication (under US law) unless the limited publication exception applies. General publication could occur even when a small number of copies were actually made or distributed. Limited publication occurred when copying was limited in both persons and purpose. This is to say, the distribution must have only been to a small, defined, non-public group of recipients, and the copies must have been distributed without the right to redistribute or disseminate the work copied. Manuscript scores were regularly copied, and there is no reason to believe this manuscript copy was made with any expectation that it could not be performed from or copied again. Therefore, the making of the manuscript copy is evidence of general publication.