Copyright Questions

[emeraldimp]

Hokay, so here's a new thread... And, Carolus, I wanted to ask you: suppose something is eligible for copyright in another country, but not normally eligible in the US. Does the US honor the foreign copyright, even though if it had been produced in the US it would be ineligible?

[imslp]

Just a recap of what happened that is relevant from the other thread:

Hmm, I was under the impression that it was sufficient to transcribe it to be eligible for copyright, at least in the US, since it involves at least a modicum of creativity in deciding the appropriate layout, if not other things, unlike scanning, where there is no real choice at all.

Hi Emeraldimp! It's sort of complicated because it has to do with case law, and the various decisions over the years pertaining to the standard of "originality" of contributions to a derivative work based upon a public domain original. A mere re-engraving of a PD original would most likely not qualify for copyright protection under US law.

There's a lawyer's website with an online version of the actual regulations used by copyright office examiners to determine whether or not they'll even accept a registration. Simple transposition does not qualify, nor does re-engraving with zero changes. In other words, something original (however minimal) must be added. BTW, I seem to recall that the German law only grants the 25-year term if the edition in question contains new discoveries or incorporates material not found in earlier versions. Dover won a massive German court case in the 1980s over the issue of the status of engravings.

Ok, but what qualifies as 'something original'? Tweaking the layout to allow for better page turns? Adding measure numbers? Creating parts from a score? Translating text? I can re-engrave with zero changes to the musical data, but not to the layout, spacing, etc. And how do you prove that nothing was added without having access to the edition the engraver was using?

Actually, I was thinking about this, and wondered whether you meant Dover-like (i.e. near exact replica) reprinting when you said "reengraving"? Or did you mean any reengraving of the same piece of music with no notes/expressions added/removed?

Ok, but what qualifies as 'something original'? Tweaking the layout to allow for better page turns? Adding measure numbers? Creating parts from a score? Translating text? I can re-engrave with zero changes to the musical data, but not to the layout, spacing, etc. And how do you prove that nothing was added without having access to the edition the engraver was using?

The only thing in your list would be translating text from one language to another. Other examples would be continuo realizations, adding slurs, dynamics, articulations, fingerings. Also, works are eligible to be copyrighted as an "original compilation" if there is added material like prefaces and footnotes, or if the components are arranged in an original sequence. The originality standard for music is fairly strict in the US. In one of the more notorious court cases, the musical changes in chorus parts required to accomodate a PD English translation of an original PD Russian text were held to be insufficiently original to warrant a copyright claim. Layout, spacing, etc. all fall under the category of "mere typographical variation" and thus not the subject of copyright. Under this doctrine, any improvement that could be made by a reasonably schooled musician that would be substantially the same regardless of which musician did it lacks sufficient originality to warrant a claim of copyright. Other courts have been a bit more generous in the interpretation of "originality." The originality standard hasn't been fully addressed by the Supreme Court, though some decisions have touched upon it. If anything were actually at trial, any source editions would be compared measure for measure and note for note in the discovery process.

When I refer to a re-engraving, I am talking about a complete re-typesetting of the music, with no musical differences whatever between the new score and a PD source score. Kalmus, Luck's and Dover's photographical reduction or enlargements of PD scores are reprints, not re-engravings. Once changes are made, no matter how insignificant (except for mechanical changes like transposition, which can be done correctly only one way), it becomes a new edition, and thus theoretically protectable by copyright. There are actually not very many re-engravings out there, strictly speaking. Almost any new edition is going to be just that - a new edition - to one degree or another, though the current ideal of a critical edition somewhat flies in the face of this concept from a legal point of view. Again, it really hasn't been fought out that extensively in US courts.

"any version of it one encounters that is less than 25 years old is protected worldwide"
This is true, but not very precise: Any edition of it that is the first one ever published and is less than 25 years old ist protected worldwide. The difference is: If an editor publishes a work that was never published before, he owns the copyright not only of this edition or engraving but the copyright of the music itself for 25 years, nobody else is allowed to publish the music in which version ever, even if the composer is dead since 70, 700, 7000 years.

"I seem to recall that the German law only grants the 25-year term if the edition in question contains new discoveries or incorporates material not found in earlier versions."
This is called a "scientific edition" in German law and not the same as a "first edition" ("Erstausgabe" in German -- I don't know the correct English term).

My edition isn't a first edition, so the music is not protected at all. If my version would be a special arrangement (Mahler's piano quartet in a version for harpsichord and 25 tin whistles), it would not be protected for 25 years but for 70 years. Sikorski's edition was published 1973, it's more than 25 years old. So it's no longer protected as a first edition. But although the music is no longer protected, this special edition is, because nobody is allowed to scan Sikorski's edition and upload it at ISMLP. Feel free to scan Sikorski's edition and upload it here -- I'm afraid you will get some trouble. If someone wants to publish Mahler's quartet he can do so, but he is not allowed to use the engraving of someone else except it's no longer available. He should do his own engraving (and thus learn how much work this is).

In my opinion this is not only a question of copyright but of fairness. I did the work, I re-arranged the piano part so that it is playable, I did the layout in a way that the piano player can play instead of turning pages, and I did the whole engraving, so I am the only one to decide how this work may be used. If someone wants to publish something, he should do the work himself, if he is able to.

(I hope my poor English is understandable.)

Herr Gedan is talking about a concept called editio princeps, a rubric under which a work that was never previously published is entitled to a term of protection for the work itself, over and above the edition. In Germany's case, that term is 25 years. Until 2003, there was a related concept in force under US copyright law. The general idea was apparently to encourage the publication of heretofore unpublished works. As of January 1, 2003, all unpublihed works of identified authors who had died more than 70 years previous passed into the public domain.

In the case of the Mahler work, the US copyright on the work itself would be in force until 31 December 2047 if the work had first been published between 1978 and 2002. Since it was first published before 1978, it comes under the provisions of the 1909 law and is entitled to a term of 95 years after publication. It is therefore probable that Herr Gedan's edition is illegal in the USA due to the Mahler's first being published by Sikorski in 1973 (which means the work itself is protected in the USA until 1/1/2069). Moreover, since Herr Gedan informs us that he "re-arranged the piano part to make it more playable", his arrangement would be protected for at least 70 years after his departure in Canada and other countries where Mahler's original is public domain.

Hi Carolus! Now that the bubble about re-engraving has burst, I have a few questions about copyright of editions... do you know of any case precident about the length of copyright for scientific editions in the US? For example, I'm currently researching about Eulenburg's edition of Bizet's Symphony published in 1973. In the editorial comment they say that

This edition of Bizet's Symphony in C was compiled from two printed scores, the Choudens (Paris) and the Universal Edition (Vienna). Discrepancies in these editions were compared with the autograph scorer in the library of the Conservatorie National de Musique de Paris, whose kind assistance is gratefully acknowledged. Thus when there is doubt, the present edition follows the autograph.

The question is, this would make it a very scientific edition... and would that be enough creativity to be copyrightable in the US? Or is this area of law ambigious like you said before? What is more interesting in this case is that the edition specifically says "Foreword and Editorial comment (c) 1973 Ernest Eulenburg Ltd., London"... if they owned the copyright to the score itself surely they won't have specified the foreword and editorial comment?

Hi Feldmahler! I would consider the 1973 Eulenburg score to be potentially copyrighted in the USA - though the claim on preface and editorial notes is certainly insteresting and raises lots of questions. I was under the impression Choudens and UE scores were actually the same engraving since they have identical page counts. Without actually examining a copy of each it's impossible to know that for sure, though. It could be that the editor's contribution in this case is so little that Eulenburg considers the music itself to be PD.

The duration of the Eulenburg copyright is 95 years from date of publication in the USA - though 12/31/2068 - unless one can prove otherwise. In other words, one would have prove to a court's satisfaction that there was insufficient originality on the editor's part to qualify for copyright protection, or that Eulenburg had injected the edition of the music into the public domain through its own actions (see below). The US law has no provision for scientific editions, nor does it follow the "rule of the shorter term" as Canada's law does. However, if Eulenburg issued copies - even only a few - of that score without a notice, or with an improper notice, which were then legally sold in the USA between 1973 and 1977, the work was injected in the public domain immediately. If the copyright had expired in the country of origin by 1996 (effective date of GATT), they did not qualify to file an NIE and that edition would remain PD in the USA. So, the notes and preface claim might be a vitual admission that they issued it without a proper notice back in 1973.

[imslp]

Hokay, so here's a new thread... And, Carolus, I wanted to ask you: suppose something is eligible for copyright in another country, but not normally eligible in the US. Does the US honor the foreign copyright, even though if it had been produced in the US it would be ineligible?

Hmm... I think I can answer this (correct me if I'm wrong Carolus). What you are referring to is the idea of the "Rule of the Shorter Term" that is laid out in the Berne Convention. Namely, if a work is in the public domain in the country of origin, it is in the public domain in a country that implements that rule too. Canada and other countries implement this rule (in Canada's case it appears as 9(2) of the Copyright Act).

However, the US does not. But this is not as dramatic a difference as one might imagine. This is because of the weirdities in the US copyright law pre-GATT/TRIPS, which does seem to have a similar idea (this part I'm not sure of). In any case, if a work is in the public domain in the country of origin prior to the coming into affect of GATT/TRIPS (this is 1994 I believe), it would stay in the public domain in the US, and is ineligible for copyright restoration.

I'm just answering to reduce Carolus' burden (not sure I'm doing a good job at it but I tried haha)... so correct me if I'm wrong anywhere. I'm still not entirely sure about how the GATT/TRIPS copyright restoration works in the US... does the edition have to be in the public domain in the US prior to GATT/TRIPS in order for it to be in the public domain after GATT/TRIPS (even if it _is_ public domain in the country of origin)? Or does GATT/TRIPS inject works which were previously copyrighted in the US into the PD if it was in the public domain upon the signing of the treaty?

I hope I didn't just make even more work for Carolus

[Carolus]

However, the US does not. But this is not as dramatic a difference as one might imagine. This is because of the weirdities in the US copyright law pre-GATT/TRIPS, which does seem to have a similar idea (this part I'm not sure of). In any case, if a work is in the public domain in the country of origin prior to the coming into affect of GATT/TRIPS (this is 1994 I believe), it would stay in the public domain in the US, and is ineligible for copyright restoration.

The magic date is Jan. 1, 1996, but you are correct. That's why all the Dvorak and Barenreiter critical editions that were in the Kalmus catalog - due to failure to publish with a proper notice or to file a renewal after 28 years - remained in the catalog despite the sudden deletion of Shostakovich and Prokofiev titles. Thus the German 25-year term for "scientific" editions has an indirect effect on US law. It rendered all sorts of works ineligible for restoration becuase they were PD in their country of origin. This also applies to works of composers like Janacek, who died more than 70 years ago and is therefore PD in his country of origin. If someone discovers that the Sinfonietta wasn't renewed or if it was injected into the public domain due to failure to comply with other "formalities", it cannot be "restored" under GATT/TRIPs.

That's not the same as claiming something is copyrighted in the US simply because it is in France, though. Re-engraving a public domain work, or re-typesetting a public domain book, will not grant you copyright protection in the USA even if it does grant a limited term elsewhere. Different countries apply different standards of originality to derivative works. The widespread use of "rule of the shorter term" tends to prevent critical editions published in Germany from enjoying any more than 25 years elsewhere, unless that country does not employ RST. Berne does not address originality standards or typography, so the standards of Title 17 and the case law in place prevail regardless of country of origin. All the treaty really does is grant an author of a signatory country the same extent of copyright protection as that granted to native authors. GATT/TRIPS allowed restoration of works that were still under copyright in their countries of origin, unless such works had already enjoyed a full term of protection under US law. Thus, while Ravel (died 1937) remains protected in the EU until next January, all the works published before 1923 are still PD in the USA. Any works of his published after 1922 that were published without notice, not renewed after 28 years, etc., were eligible for restoration to a full 95 year term. Hence the later works will be copyrighted in the USA for years to come - even though they'll be PD in the EU.

Henle, BTW, has taken great pains to register every single publication as a "work made for hire" with the copyrught office. This essentially means that Henle is legally the author, and has full rights to make renewals after 28 years (which they do like clockwork). Busting a Henle copyright in the USA - even one that is PD in Germany (the company was started in 1949) - would be quite nasty and expensive. (You'd have to prove to a court's satisfaction that a Henle publication was a mere re-engraving, that the editorial staff contributed nothing original, etc. Good luck with that!) No one has made the attempt, either. When it comes to making certain all the "t's" were crossed and the "i's" were dotted of US copyright laws, Henle, Durand, Ricordi, and Universal were the best Euro publishers. They seldom if ever miss. If you run into a post-1922 work from those folks, you can count on it being protected in the US.

[imslp]

Thanks for the answer Carolus! I'm still trying to wrap my head around it... so if I understand correctly,

1. the amount of originality required for a new edition to be copyrightable is something that is still relatively unexplored in existing legal cases (jury out to lunch), and also varies a lot between different countries,
2. an engraving of a score by itself has no copyright in the US,

did I get them right?

[Carolus]

Feldmahler, see the above post for some backgroud detail, but in a word the answer is: No. The copyright office routinely rejects registrations for re-engravings, transpositions, new typesettings, etc. Although copyright is not dependent upon registration, one is required to register in order to file suit in US court.

[Carolus]

Hi, I see we crossed posts! Yes, originality standards aren't set in stone - apart from things like transposition and re-typesetting, where there's fairly extensive case law holding that such things are "mechanical" and require no original creative contribution. That's why the copyright office rountinely rejects registrations for works where that's all that was done. Even those aren't necessarily set in stone should the Supreme Court decide otherwise in the future.

With the Eulenburg score of the Bizet Symphony, the question could come down to whether the editor of record actually made any original contributions apart from the preface and notes, upon which copyright is apparently claimed. For a score published in 1973, the notice had to be in the prescribed form ("©", "Copyright", or "Copr.", followed by the year of publication [1973], followed by the claimant's name [Ernst Eulenburg, Ltd. or possibly the editor's name]). This notice had to appear on either the first page of music, or on the title page (not the reverse of the title page). If the notice appears correctly, and there is an editor's credit on the first page of music, I would recommend doing a formal search to determine if Eulenburg registered a claim to copyright on the edition. If the notice is absent, defective, or appears elsewhere, the work would be PD in the USA unless it was still protected in the country of origin (UK, I suspect) on 1/1/96 and an NIE was filed under GATT/TRIPs before to the copyright expired in the country of origin.

[imslp]

Thanks for the info! In fact, the copyright notice is on the reverse side of the title page (below the ToC)... I assume this means it is public domain? Which would be nice

[Carolus]

OK, so the copyright notice appears only on the reverse title page, and does not appear on either the title page itself, or on the first page of music, right? If that is so, then we need to determine the copyright status of the 1973 edition in its country of origin. The complicated thing here is: Which is the country of origin?

According to my ca. 1980 copy of Grove, the firm was founded in 1874 by Ernst Emil Alexander Eulenburg (1847-1926) in Leipzig. In 1891, Eulenburg purchased the Payne miniature score series (also of Leipzig), and in 1894 he bought out the miniature score series of the London publisher E. Donajowski to form the series Eulenburgs kleine Partitur-Ausgabe, which operated in Leipzig until Ernst's son Kurt moved the business to London (1939). Kurt retired in 1968 and sold the company to Schott, whose headquarters are located in Germany (Mainz). So, is the 1973 edition governed by German law or English law? If German law governs, the edition is PD in the USA unless an NIE was filed before 1999 because of the defective notice. If the country of origin is the UK, the edition could still be eligible for restoration under GATT/TRIPs if it's still protected in the UK [Unlikely, see below]. The exact name of the claimant in the copyright notice on the reverse title page might help in this regard. Is it Ernst Eulenburg, Ltd., London or Ernst Eulenburg und Co, GmbH, Mainz?

OK, just checked the UK statute (Chapters 8 and 15) about "published editions" and duration thereof. It appears to be similar to the German law, in that a "typographical arrangement" is entitled to 25 years' protection. Since the claim is only for the editor's preface and notes, this strikes me as an edition that would only qualify for the "published edition" term under UK law. That means they had a three-year window to file an NIE (1/1/96 to 12/31/98), after which point the typographical arrangement entered the PD in either Germany or the UK, closing the GATT/TRIPs option permanently.

The odds of this edition being protected in the USA are starting to decrease significantly. (Smell of blood in water, savage Reptilian brain in gear.)

[imslp]

Wow... thank you for the research! It is "Ernest Eulenburg, Ltd., London", and even if an NIE is filed between 1996 and 1998 it would still be public domain in Canada through the 25 year law. Interesting