Pieces transcribed from Musica Britannica

[StephenWest]

The Musica Britannica series, published by Steiner and Bell, set out (according to its own homepage at http://www.musicabritannica.org.uk/index.html) to publish ‘English Music derived from non-copyright sources earlier than the twentieth century which has not been made available to the public by commercial publishers’. The same page also states that their 'chief purpose is an accurate and scholarly presentation of the original texts'. Does the fact that they have compiled these volumes from non-copyright sources mean that we are free to transcribe pieces from these volumes and upload them to ISLP? Failing that, but based on their statement about 'scholarly presentation of original texts', is it safe to treat these as urtext editions which would, as I understand it, mean that we treat them as having 25 years of copyright protection from the date of publication?

Any advice much appreciated. Thanks!

Stephen

[Carolus]

As long as the volumes are more than 25 years old, yes. Things newer than that might fall under the EU editio princeps rule - even if they're by composers dead for centuries. The USA, as usual, is insane. Basically, if the MB volume is the first publication, it would be covered for 95 years from publication (if published before 1978), or until Jan. 1, 2048 (if published 1978-2002). From 2003 onwards, only the edition is protected, not the work itself.

[StephenWest]

OK thanks. The volume I'm looking at was published in 1961.

[StephenWest]

On second thoughts, this may not be so clear-cut. Although it is stated that the 'chief purpose [of the MB series] is an accurate and scholarly presentation of the original texts', it is clear that the editor of the particular volume I am looking at has done quite a lot of editorial work. He has written the music in modern notation, with barring etc, which is arguably just a mechanistic process. However, he has also added editorial accidentals (ficta) and, in some cases added occasional notes that seem to be missing in the original. He has also edited the text of songs, changing some of the spelling to more modern usage and re-setting some of the underlay so that it better aligns with the notes. In the case of a "puzzle canon" (where the original music omits one of the parts and leaves it to the players to solve the puzzle and decipher what the part should be) the editor has provided the soplution to the puzzle and inserted the missing part.

I'm not sure I have seen a precise definition of "urtext" but I think this volume from Musica Britannica may not qualify. There may be a few pieces from the book which the editor has left unchanged (there are extensive editorial notes, so it should be easy to pick them out).

Steve

[jossuk]

And by analogy: if a "new" edition of, say, Beethoven sonatas had been published with the kind of editorial work you describe, I would think that such an edition would definitely qualify for full copyright protection under current laws.

[StephenWest]

The difference is that, in the case of Beethoven's sonatas, someone who cannot afford to buy the new edition, has the option of alternative public domain editions. In the case of Musica Britannica, Volume XVIII, the claim is that it was the first time that most of this music was ever published. (It is, I suppose, a moot point whether the original book that it was transcribed from was a 'publication' or just someone's private manuscript.)

If I understand correctly, the contents of the MB volume is entitled to the same copyright protection as something written by a living composer, despite the fact that all the composers have been dead for at least 450 years. In practice, I am aware of quite a few pieces from the volume that have "escaped into the wild" in the 50 years since the MB volume was published. Presumably these have just been copied out by people who are less scrupulous about copyright law than we are!

Nevertheless, we are scrupulous, and I have the answer to my question!

Cheers

Steve

[Carolus]

OK, lets address the points to see what we come up with. Unfortunately in a way, there have been very few court cases even in the EU which deal with this issue to any degree of exactitude.

1. Rendering into modern notation. This is a process and displays little originality.
2. Adding ficta. How much difference would there be between one editor schooled in the subject and another in terms of the end result? My estimate is not much, though there is admittedly a certain amount of subjectivity and personal taste involved. It's a gray area.
3. Sovlving the puzzle of the puzzle canon. A very similar case to No.2.
4. Modernizing text and filling in missing text (from public domain sources). This is more like No.1.

Part of the problem also stems from the fact that US and Canadian courts tend to use a very high-bar of originality. The amount of time and effort (sweat of the brow) has been explicitly held to have no relationship to originality by the US Supreme Court. Courts in the EU, by contrast, have considered 'sweat of the brow' as a serious factor. I would be inclined in this particular case to say no, it does not really fall under the urtext rubric and would be the life of the editor in Canada and the date of publication in the USA. Not all MB volumes are this complicated, thankfully. I take a fairly conservative view of the issue, while some EU libraries take a much more lenient one - where elaborate continuo realizations and editor's prefaces are made available for download as public domain, even when the editor died much less than 50 years ago. They seem to take the position that any edition of older music over 25 years old is pretty much fair game. Have they been consulting attorneys, or is it a case where as a state-funded agency they are effectively immune from infringement? I just can't say.