I purchased from the Austrian National Library (Österreichische Nationalbibliothek, http://www.onb.ac.at/), some copies of old manuscripts, such as the compliments to the original partiture of Mozart's Requiem (especially Domine Jesu and Hostias) with the instrumentation written by Maximilian Stadler, and a complete partiture of the same Requiem wirtten by Stadler originally after the composition by Mozart. I wonder if such scores are eligible for being published at IMSLP. Page http://www.onb.ac.at/ev/use/reproductions.htm reads:
Publications
For reproductions intended to be used for publication, fees for use of our material are charged. The person who ordered the material is also obliged to deliver a specimen copy of the publication to the Austrian National Library.
We did not consider scans or photographs of public domain items - like Mozart's Requiem, K.626 - to be copyrighted irrespective of whatever ridiculous claims have been made by libraries or other organizations. Courts have repeatedly ruled that the ownership of the object in which a work is embodied does not constitute a claim of ownership in the copyright of the work itself, if copyright subsists in said work. A person operating a machine making faithful reproductions of two-dimensional public domain objects fails to meet any reasonable "threshold of originality" standard. Meeting this standard is the absolute minimal requirement for any claim of copyright status according to a large body of law and court decisions in a number of countries.
If a library can claim copyright - or a "right of reproduction" (which is basically indistinguishable from copyright) - on images of public domain originals, Kalmus and Dover should then be able to enforce similar claims on their own reproductions of public domain originals. Such an argument is nothing less than an attempt to abolish the public domain altogether. One of this site's core missions is to keep the public domain as the public domain. Post away.
I doubt that their claim would be about copyright - because scanning does not create a new work in the sense of the Ausrian UrhG (the Austrian copyright law).
However, when you ordered the facsimiles, you entered into a contract with the Austrian national library. Posting the images here might constitute a violation of that contract, and you might get sued for contract violation, not for copyright violation...
Cheers,
Reinhold
Last edited by reinhold on Wed Sep 02, 2009 8:11 pm, edited 1 time in total.
BTW, the employees seem to be quite picky that the scans are made only for private, scientific purposes and are not published. It's fine to base a new edition (even verbatim) on them and publish that, though.
I think this is something where there is no legal precedent:
All large libraries have had fees for commercial access to their holdings, especially if they are unique manuscripts, and I can understand that such public institutions should not support commercial venues by supplying subsidized access.
Even libraries like Dresden (SLUB) that allow free access to some of their treasures won't allow free commercial use, and if you directly ask for copies of their holdings, a very similar contract to the one from the ÖNB (Austrian Natl Library) has to be signed, requiring the written permission of the library for anything more than personal use.
But until now, Dresdens SLUB apparently has no objections to the mirroring of some of their scans on IMSLP (do they know about it?).
If SLUB (or The Danish National Library) have no objections to the mirroring of their scans on IMSLP, than I cannot see any difference to a scan done from photocopies or microfilm. You simply need the permission of the library to post scans on IMSLP to fulfill the terms of the contract, but with the precedence of institutions like SLUB this may be easier to get in the future (after all, its not commercial use) - I would just ask for permission mentioning examples like SLUB in Dresden, BSB in Munich and DNL in Kopenhagen.
Thank you very much kalliwoda for your contribution to this subject: interesting set of similar cases form other libraries.
Going back to Reinhold's contribution (thank you also, Reinhold), your viewpoint is interesting because it leads to a question that is actually the core question I wanted to address with this topic: is there any legal ground when somebody pretends to set restrictions (e.g., "only for private, scientific purposes", "any other use must be authorised", etc.) about the use of works that are clearly in the public domain? Or are they "ridicolus claims" (as remarked by Carolus), being just funny attempts to set conditions by somebody having no legal rights to set any condition at all?
as you gathered from Carolus' response, copyright isn't usually an issue with facsimiles of original manuscripts, when the given work is unambiguously in the public domain - on the other hand, publication of a previously unknown and unpublished MS is handled quite differently in various jurisdictions. (For instance the Berlioz Messe solennelle resurfaced in 1991 after 160 years of obscurity, having been never before published, so some countries might quibble about posthumous copyright terms while others might dump it straight into the public domain).
The sort of issue Reinhold raises is contract law, though, and whether the Library has the right to either make or enforce ridiculous contracts limiting the use you can make of your copy of their property. I wouldn't like to speculate on this, because in the first place I am not a lawyer, and in the second place one can well imagine that Country A has a reasonable view that unenforceable contractual conditions are null and void, Country B is by nature litigious and allows any type of inane contractual obligation lawsuit to be launched, or Country C has laws stating that obligatory contracts which can't be avoided (such as software EULAs that you are obliged to agree to before you may even make use of the product) have no basis in law. The specific answer re: the Austrian National Library's contract would likely be a question of what is permissible under Austrian or EU law.
Just the thought of seeing such a valuable collection mirrored here on IMSLP makes me feel all warm and fuzzy.
aldona
“all great composers wrote music that could be described as ‘heavenly’; but others have to take you there. In Schubert’s music you hear the very first notes, and you know that you’re there already.” - Steven Isserlis
The issue of the contract into which one enters when purchasing a microfilm from a library is central, and will vary from library to library. And while that will guide the legal aspects of the issue, there's also the matter of simple courtesy. Since one has contact with the institution, a correspondence with them regarding their wishes for the digitization would be in order. They may say yes, if they don't have the resources to do the job themselves and would the see this as a way to not have to deal with future requests for this body of material. Or they might say no if they get enough orders for this that it is a revenue stream for them (or maybe they just like to keep track of their material and its uses). Either way, the right thing to do is to contact the library in question for permission.