Livre d'orgue de Montréal

[pierre.chepelov]

A few months ago, the Library of Québec just made available online the full manuscript score of the Livre d'orgue de Montréal - the most important (540 pages) document on French 17th c. organ music.
On the site (http://bibnum2.banq.qc.ca/bna/livreorgue/) there's a copyright claim, seeming to forbid the importation of the score on IMSLP.
On an other hand, such copyright claims have been seen as irrelevant by IMSLP - as an example, the French National Library (BnF) scans of Lully's operas manuscripts and scores, on witch the BnF claims strict copyright (and it is not clear if they're right according to French law...), are on IMSLP.
Do people here have any advice on that case?

[Carolus]

We do not recognize any claims to scans or images of public domain originals. To make such a claim basically destroys the entire concept of public domain itself, effectively allowing institutions like the BN to excercise a copyright in material that is (rightfully) in the public domain. If the BN or University of Quebec can claim copyright in scans of a 17th century manuscript, then I see no reason why Kalmus and Dover cannot claim copyright on their particular reprints of the Bach Gesellschaft and countless other public domain scores. Copyright terms are already ridiculous in length. Expanding the scope of copyright to include scans or images of public domain originals would be a disaster - effectively abolishing public domain itself.

[pierre.chepelov]

Thank you, Carolus - this is what I wanted to hear!
I was just quite afraid of the fact that the copyright notice (© 2008 BAnQ), that clearly exclude any Internet reproduction, has been made by a Canadian governmental agency, so should comply with Canadian law... that may be important for IMSLP.

Let me be more precise, before to proceed: the document on the BAnQ site seems to be a scan of a printed fac-simile edition of the manuscript, in which there is another copyright notice : © 1981 (by the original publisher). Apart from a few modern foreword pages, there are only photographs of the manuscript pages, with added page and piece numbers in the margins. Should I crop the margins and manually re-add page and piece numbers? Or, maybe it's not a problem because 1981 is more than 25 years ago?

[Carolus]

Just to be on the safe side, I would crop the margins and added numbers - even though it is extremely unlikely that they would meet the threshold of originality in any court. I noticed there was a modern edition on the site as well. This would of course not be eligible, nor would any prefaces, commentary or other original material added by editors (as you know). As I said previously, if a faithful scan or photograph of a public domain original is the subject of copyright, then there is effectively no such thing as public domain.

The only possible case where the volume in question could be under copyright would be under the doctrine of editio princeps. In order for this to be a case of editio princeps (first publication), the work is question must have never been published in any form - not even partially - until after 1959. If the 1981 issue was the actual first publication, and it was published in Canada, it could be protected in Canada until 2032 (50 years after first publication), and in the USA until 2048. It would already by free in most of the EU, since editio princeps is for only 25 years after publication there (excerpt for the UK, which has its own bizarre transitional term).

[pierre.chepelov]

Actually, the ms. was only discovered in 1978: the 1981 facsimile publication is indeed the first one, and the only one, along with the 1985 modern engraving - both issued in Canada. So I'm afraid this is not a good client for IMSLP!
I didn't know that in such a case the Canadian rule could be longer than the European one(s)...

[Carolus]

That's too bad - it looked like a very interesting volume. Ironically, due to some of the changes in the US copyright law, if the work had been discovered only in 2003 and first published in 2004, it would not be subject to any copyright protection itself, but only as an edition. On 1/1/2003, all unpublished works of authors dead more than 70 years entered the USA public domain. The present US law has no editio princeps provision. Both the facsimile and edition are probably free in at least parts of the EU, due to editio princeps and the urtext provisions. A rare case whereby something is protected longer in Canada and the USA than elsewhere.