Editio princeps "running amok"

[kalliwoda]

Just noticed the blocking of Lotti Echo-Sonata - a 1720 manuscript available on the Utile dolci site (F major, for 2 oboes cello continuo). This has indeed ben published in 1997 from another source (D-HRD) but according to Haynes online for different instrumentation (2 oboes, 2 english horns) and in a different key (G major).

I cannot understand the extremely rigid interpretation of the Editio princeps principles here, essentially forbidding the performance of this work in its original form for 25 or even 50 years just because the available "severely compromised" (I know I exaggerate) new publication locks it down in no-go-land.
The protection is for publications of newly discovered works - not works that have been listed in freely available library catalogs and bibliographies and have been distributed in photocopy and microfilm form to anybody who inquired about them for decades.
Another question would be the publication of an independent modern edition of the same work - that may have to wait until the Editio princeps protections have run out - but even there protection should not be automatic if an arrangement is published first.
But blocking the original manuscript scan actually puts the Statens Musikbibliotek in Stockholm (home of the Utile dulci collection) on notice: you are violating editio princeps by allowing access to this manuscript in your collection, because there is a recent edition from a different source. I cannot believe this would hold up in court anywhere in the world.

It would also be a travesty of copyright laws, if any new edition could forbid me to use for concert performance of a work photocopies that I acquired already 20 years ago.

[Notenschreiber]

In my opinion the publication of an arrangement is not the same as a first edition of the original work, so the original work should remain in the
public domain. By the way, is it correct, that first editons at IMSLP under CC a licence protect original works to fall under the Edition princeps protection?

[Carolus]

I was not aware that the 1997 first publication was an arrangement. It would have been helpful to include a note to that effect, as it does complicate the issue somewhat. This is one of the advantages of Canada's defining performances (or recordings) as being the equivalent of publication for the purpose of applying their own editio princeps (which is 50 years) to works of authors dead over 50 years. As in the USA, there is no editio princeps in play at all for anything of such long-dead authors first published (in the usual sense) 2003 and later. The Canadians decided to make it much more difficult for items first published less than 50 years ago but before 2003 by including performances and recordings - which pretty much excludes really old works like this from qualifying as an editio princeps copyright. The worse editio princeps problem is in the USA for pre-2003 first publications, where the arrangement being published certainly protects the original version - the doctrine of publication under court precedent being that all extant versions of a work are considered to be published upon the publication of any version or derivative - until 1/1/2048 for something first published between 1978 and 2002, or up to 95-years from publication for items first published between 1923 and 1977. Under the EU copyright directive, editio princeps might only apply to the original version, but there could be different situations in each EU country as the EU directive itself does not address the issue to that level of detail.

[Notenschreiber]

There are two different recordings of europeen baroque ensembles of the echo sonata (Germany and Italy)
in 2009 in the instrumentation 2 oboes, bassoon and continuo, may be the first ones.

[kalliwoda]

Hallo Carolus,

What I believe to be overly strict interpretation of editio princeps: If a scan of a manuscript is freely available from Utile dulci, SLUB, SBB, BLB or any other, why would its mirror at imslp have to be blocked under the EU copyright - if the libraries themselves see their offerings not restricted by editio princeps of recent new editions.
Moreover, given that much baroque music was never printed but distributed in manuscript form, I also doubt that works that still exist in more than one extant copy would qualify for Editio princeps protection (see the German case of an opera from the Singakademie archives).

What seems to fall into the greyzone not specified by the EU directive are photocopies and microfilms of library holdings, that were available from most libraries since the 1970's - should they not be treated equally to a public performance? At least, nothing already distributed in that way could be considered "newly discovered".

[Carolus]

I'll admit this is pretty complicated from the EU point of view. As you mention, Utile dulci and its colleagues seem to have no problem in posting the manuscript. Perhaps they are doing so under some sort of special exemption set up for libraries and archives, which I suppose it could be argued that we are likewise qualify to use (even though our main server is in Canada). At any rate, I will be changing the tag to "C" for the EU on the basis that the item is clearly available in the EU from a library site. That will at least free it up for everyone but the USA, where it would clearly be protected until 2048.