Denoting works, rather than scores, as PD or non-PD

[jdeperi]

This issue is especially relevant for works that have some or all scores hosted on regional servers (IMSLP-EU, IMSLP-US, etc.), though the example I'll use as an illustration happens to be US-related.

Carolus very helpfully created two templates, {{WorkPD-USonly}} and {{FilePD-USonly}}. The former is intended to be inserted at the top of every work page whenever the work is PD-US-only, while the latter is to be included in the information for each score that is PD-US-only.

What denotes a PD-US-only score seems pretty clear: something about the score (music, lyrics, cover art) was created by an author who died < 50 years ago, and the score was published prior to 1923. But whether a work is PD-US-only can depend on things other than the composer. For example, daphnis made Schoenberg's Erwartung available at http://imslp.org/wiki/Erwartung,_Op.17_ ... _Arnold%29. The score is PD-US-only because it was published before 1923 and the lyricist, Marie Pappenheim, died in 1966, which is < 50 years ago and hence non-PD CA/EU. But if the lyrics were excluded, the score would be PD CA/EU. Therefore the work itself is not really PD-US-only -- or is it?

Two other examples daphnis made available are Puccini's Gianni Schicchi and Suor Angelica (http://imslp.org/wiki/Gianni_Schicchi_% ... Giacomo%29 and http://imslp.org/wiki/Suor_Angelica_%28 ... Giacomo%29). Gianni Schicchi furnishes a real example of the semantic conundrum at stake: again, the lyrics are the only thing that make scores of this work non-PD CA/EU, given Puccini's death date. If the lyrics are excluded from the score, as in the instrumental arrangements available for that work, then the score can be PD CA/EU as well as PD US. Since it doesn't make since for a PD-US-only work to have a PD-CA/EU score (or does it?), it seems like such a work should not be labeled PD-US-only. Probably only works for which the composer of the music itself died < 50 years ago -- not the lyricist, the cover artist, et al. -- should be considered PD-US-only. Unless we start publishing standalone libretti on IMSLP.ORG.

What do all of you think?

Jonathan

[steltz]

The issue would be relevant for the orchestral parts to those Puccini operas. I'm not sure what you're asking, but it would certainly be possible to post the parts on the same work page, just not with the American flag as the download symbol, and it should be clear that those files are PD everywhere. It can also be explained in the comment field. I think the actual files for the orchestra parts would have to be on the US server -- is that what you're asking?

[daphnis]

The issue would be relevant for the orchestral parts to those Puccini operas. I'm not sure what you're asking, but it would certainly be possible to post the parts on the same work page, just not with the American flag as the download symbol, and it should be clear that those files are PD everywhere. It can also be explained in the comment field.

Not necessarily as orchestral parts to operas often have vocal cues, and any such cues containing libretto (which is almost always the case when vocal cues are given) would be infringing on the copyright, technically speaking.

@jdperi, I think that individual scores needed to be marked as PD or non-PD. For us to do so for the works (i.e., the intellectual work) is going to create more problems than it is worth, plus indicating if a score is PD or not is often a fairly good indicate of the state of the work. If I've missed the mark please let me know, otherwise I don't see if there is a specific issue that is problematic here.

[jdeperi]

@jdperi, I think that individual scores needed to be marked as PD or non-PD. For us to do so for the works (i.e., the intellectual work) is going to create more problems than it is worth, plus indicating if a score is PD or not is often a fairly good indicate of the state of the work. If I've missed the mark please let me know, otherwise I don't see if there is a specific issue that is problematic here.

I agree that it's completely clear what scores should be marked PD-US-only and what scores shouldn't (because they're PD CA). My ultimate question, in fact, is whether it makes any sense at all to denote a work, as opposed to a score, as PD-US-only. My best idea so far is to call a work PD-US-only solely if the music -- the notes -- in the work itself is PD-US-only. Because it seems conceptually odd to have a work like Erwartung be marked PS-US-only yet potentially have scores that are more widely PD.

Let me refer Carolus, who originally came up with the idea of classifying works PD-US-only, to this thread.

Jonathan

[daphnis]

My ultimate question, in fact, is whether it makes any sense at all to denote a work, as opposed to a score, as PD-US-only.

I don't think it does. But I guess what I'm not getting is to what extent would denoting a work (as opposed to a score) be useful? Are we just talking about putting a notice on a work page as opposed to a notice in the miscellaneous field of the form? If this is the case, I think indicating a work as PD-US is somewhat superfluous. Making this same indication on a score-by-score basis is just fine and makes it perfectly clear to would-be downloaders.

[jdeperi]

I don't think it does. But I guess what I'm not getting is to what extent would denoting a work (as opposed to a score) be useful? Are we just talking about putting a notice on a work page as opposed to a notice in the miscellaneous field of the form? If this is the case, I think indicating a work as PD-US is somewhat superfluous. Making this same indication on a score-by-score basis is just fine and makes it perfectly clear to would-be downloaders.

That's what I'm questioning: the extent to which denoting a work's PD status is useful. I think it's probably not very useful.

Carolus created the {{WorkPD-USonly}} category expressly for the purpose of indicating on the work page that the work has (or may have) special PD status. The category is inserted at the top of the work page for http://imslp.org/wiki/Erwartung,_Op.17_ ... _Arnold%29, for example.

Perhaps this designation is superfluous: if there's a way to get a list of the works that have scores that are PD-US-only without applying this additional category, then the category indeed seems superfluous.

Jonathan

[daphnis]

Right, ok. I believe it is best to simply put the notification on the score in question. After all, the purpose of this notification is to inform users of the copyright status of the score in question, not the work. And such a copyright designation can only be manifest in the score as representative of the work.

[jdeperi]

Right, ok. I believe it is best to simply put the notification on the score in question. After all, the purpose of this notification is to inform users of the copyright status of the score in question, not the work. And such a copyright designation can only be manifest in the score as representative of the work.

I think I agree with you. Works do not exist as far as copyright is concerned: only scores do, and the material ("intellectual property") they manifest. So we shouldn't try too hard to classify works as they are only a construct of our imagination.

Jonathan

[Carolus]

I see I'm late to this conversation, but any work by Stravinsky first published before 1923 is an example of a work which is PD in the USA only, while his orchestration of Mussorgsky's Song of the Flea would stand as an example of a file or a particular score (Stravinsky's arrangement) that is free only in the USA, while the original work of Mussorgsky's is free everywhere. Other works by Stravinsky, like Orpheus, are under copyright in the USA along with being protected in Canada, the EU and elsewhere. Operas like Erwartung are usually pretty bad examples, as the only case where the libretto or text does not come into play would be an instrumental arrangement made by the composer or by an arranger who is free in Canada - something where none of the text is reproduced. As steltz mentioned, even the instrumental parts for operas where the librettist is non-PD in Canada frequently contain textual cues and would be unlikely to fall under a "fair use" exemption. Another issue arises when someone from a country other than the USA attempts to upload an arrangement or edition of a work which is free only in the USA to the Canadian server, which cannot be allowed.

The root of the problem here lies in the manner in which copyright terms are calculated. The USA is unique insofar that everything published before 1978 has a term calculated from the date of first publication, while almost every other country on earth calculates the term from the death of the last surviving contributor. One of the main reasons for my creation of the {{WorkPD-USonly}} template was to enable the set up of the corresponding category. The {{FilePD-USonly}} sets up a category which includes items like the arrangement listed above. Right now, I think there is a lot of duplication between the two categories, but we could limit the {{FilePD-USonly}} template only to items like the arrangement, limiting the {{WorkPD-USonly}} to the specific works of composers who are still under copyright everywhere in the world except the USA.

Works very much do exist as far as copyright law is concerned. Specific scores of public domain originals are only afforded copyright protection if they are considered to be a new, derivative work. Stravinsky (the composer) is either public domain or copyrighted in the USA - depending upon the work in question. For example, the 1965 Muzyka score of Rite of Spring is free in the USA because there has been nothing of original significance added by the editors of the 1965 score to the work, which is free in the USA (thus enabling Dover, Kalmus, and International's reprint of this score). If Daphnis arranges Rite of Spring for wind ensemble, he can only upload his arrangement to the US server as it would be an illegal arrangement in Canada or the EU. Works are more of a crucial distinction under US copyright than under Canada and other countries, though this distinction comes into play there as well when something was published for the first time recently thanks to the whole editio princeps idea governing the posthumous publication of specific works.

[pierre.chepelov]

But if the lyrics were excluded, the score would be PD

In the case of a work by a PD-composer and a non-PD-lyricist, I don't think that deleting the lyrics do make the work, or the score, or even the parts, PD... If the composer set a pre-existing text into music, the musical work is a derivative work (this is why Pelléas is still protected in Europe...); if the composer and the librettist worked together, they are co-authors. Fauré's Pelléas is PD (in the EU) only because this work does not use Maeterlinck's text (only the title).
I think that only if the text was added on a preexisting music, the "blanking" solution could work (this reminds me some famous birthday song...)

A few years ago I was told that even a textless movement of a musical work by a PD composer, made on a text whose author is protected, stays protected.

Well, maybe things are different on your side of the Atlantic? Just my two eurocents...

[KGill]

That would be amazing if it were true (which I'm pretty sure it's not, although I'm certainly not an expert or anything). If a score contains nothing written by someone, then how could it possibly be treated under the law as if it did? That would be a fairly ridiculous extension of copyright law...Pelleas is protected in the EU because of Maeterlinck, but (for instance) Roques's arrangement for piano 4 hands is not, because Maeterlinck had nothing to do with the music itself - only Debussy did.

[Carolus]

Pierre Chepelov's point about a work where the composer is PD and the author of the text still-protected are viewed as co-authors of both text and music is possibly the case in the EU, especially in countries like France, Germany and Italy where there is much emphasis on moral rights with respect to the integrity of a given work itself. This is very much less the case in the USA and Canada. For example, the purely instrumental arrangements we have posted of the aria "O mio babbino caro" from Gianni Schicchi might not be entirely legal in some EU countries because it could be argued that the very elements of the melody itself - melodic shape and rhythm - are derived in part from the rhythmic shape and pitch of Giovacchino Forzano's still copyrighted text. It's unlikely in the extreme that this argument would hold up in either a US or Canadian court - as it essentially takes the position that Forzano is effectively Puccini's co-composer here, or that Puccini's music is derived from Forzano's text (or was it?). Nevertheless, the longstanding moral rights tradition in European copyright could provide a basis for such an argument there.