Submitting typeset for existing scan using Performance Restricted Attribution Non-commercial No Derivatives 1.0

[daphnis]

The Performance Restricted Attribution Non-commercial No Derivatives 1.0 license type is another one which was deprecated, but is there an exception when uploading typesets for an existing scanned work which has already been assigned this license? If not, then I take it users will not be able to upload typesets of these works?

[DBMiller]

The entire point of the "no derivatives" licenses is that no derivatives are allowed. Users have NEVER been allowed to upload typesets of any type of ND work. This is part of why we don't allow those licenses in general.

[daphnis]

Although the point is probably moot, can you direct me to any authoritative source which states that a typeset of a manuscript (not an edition or arrangement) would be considered a derivative?

[DBMiller]

CC ND licenses say: " Adapted Material means material subject to Copyright and Similar Rights that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Licensor."

CC ND licenses explicitly do not grant permission to distribute Adapted Material.

[noqu]

Yes, but that simply repeats the question, namely whether typesetting constitutes "a manner requiring permission under the Copyright and Similar Rights held by the Licensor".

Any good authoritative sources saying that it does?

[DBMiller]

You have it backwards. It's not that I need to show that typesetting falls within a limited category of prohibited derivatives; you'd need to prove that there is permission granted to distribute a typeset.

You're not allowed to do ANYTHING — even basic redistribution — except according to the permission granted by the license (or the exceptions in copyright law). All distribution (with or without modification) requires the permission of the copyright holder, except when exceptions (such as fair use apply). That's what this clause is saying.

The license is quite straightforward in this respect and the answer is a clear no.

[daphnis]

you'd need to prove that there is permission granted to distribute a typeset.

I have written permission from the copyright holder (composer's daughter) to typeset these pieces. But, further, how is typesetting them and uploading them to the exact same location as the original content considered redistribution?

[DBMiller]

Publishing the file on a website (such as IMSLP) is distribution.

In any case, if we have actual permission from the copyright holder, then it is legal — though we only allow non-free licenses such as this for specifically verified PRO members; otherwise, we would require permission to release under an approved free license (which she can email to permissions@imslp.org).

[daphnis]

we only allow non-free licenses such as this for specifically verified PRO members

Can you point me to where this is documented so I can pass it along to the copyright holder? It is not mentioned on the Subscriptions page nor any other page I can find.

[DBMiller]

It has nothing to do with subscriptions. See the licensing policy: https://imslp.org/wiki/IMSLP:Licensing_ ... Guidelines

PRO refers to "performing rights organization." The reason why these licenses can be allowed for members of such organizations is because the rights to use them can at the very least be acquired through a reliable, standard process. However, they are non-free, and so cannot be considered made available in the same way that freely licensed (or public domain) works are (which are the main collection of IMSLP).

The purpose of the policy is, among other things, to avoid the situation where music posted on IMSLP cannot legally be used for any useful purpose (e.g., playing or making a recording).

[daphnis]

Ok, I understand. But would we not consider that a typeset of a preexisting piece which has already been licensed in this manner would be grandfathered in? Submitting new pieces of music is well understood that that ability has been deprecated and removed. Is this a derivative? No, it is not an edition, arrangement, or any other transformation involving creativity. Is it redistribution? No, in the sense it is not a new entity, it is being distributed from exactly the same place in exactly the same manner as its source.

Would we not be willing to grandfather typesets which meet these criteria?

[DBMiller]

It is both of those things. Your argument is legally unsound. Being an "Adaptation" for the purposes of the license does not require creativity or originality, but includes (various types of changes) as well as "other alterations," meaning any copy which is altered in any way is an Adaptation, and the only time that a modified version can be used is when "such modifications as are technically necessary to exercise the rights in other media and formats," which they a typeset never would be. It is also certainly reproduction of the work as defined by the license; the fact that you would distribute this reproduction on the same website does not change this in any way.

More importantly, besides the fact that what you propose is definitely not allowed by the license, we will absolutely not make any exception to this rule. A work that is available under this totally non-free license is useless for any realistic purpose, and its being distributed as an unusable piece is hostile to users and runs directly against the entire purpose of a free-content library.

[daphnis]

Got it, I understand we will not grandfather such pieces in. But that aside, and out of my curiosity and for my own education, are you able to point to any authoritative sources or any documentation which support the claims you're making? Any prior precedent in which a typeset, made with permission, constitutes what you're saying it does?

[DBMiller]

Of course there is no legal precedent interpreting this license, because it has never, as far as I know, been litigated at all. The text of the license is quite plain, however, and you must understand that no permission is given except as expressed by the license. Also, while it is not necessarily strictly determinative of the license's meaning, I am certain that when I ask Edward (who was the author of this license, and whom I'll ask for you) he will agree with my interpretation.

In any case, it really is a basic black-letter principle of copyright law that posting a typeset online is distribution (whether or not the site has another copy of the same piece is totally immaterial) and that typesetting a piece of music (whether or not such a typeset involves original creativity) requires the permission of the copyright holder, which this license pretty clearly does not grant.

A typeset made with permission is not unlawful to make, but that permission is separate from the license. Such requirements for individual permission make these licenses non-free and are one of the reasons we don't allow such submissions.