You are not the guardians of the public domain. You are not even a public institution. You are a private corporation, registered to one individual with an army of volunteers helping you. You claim the copyright laws of one country, but require notices of infringement to be sent to a private address in another. As far as I can tell you depend on donations and Amazon referral income to keep the lights on and the servers running. Meanwhile, the libraries that you claim to want to drag into the 21st Century have been preserving as much "public domain" material as they can for future generations, sometimes for centuries. There are very real expenses that go into doing this, but you claim not to care about this because "the world has changed." You view them as getting in the way, rather than doing as much as they can to continue to fulfil their mission so that future generations can even just see these works. Digital images are no substitute for the real thing, believe me.
You are not even the first organization to care about public access to works over the Internet. The CPDL has existed since 1998. DIAMM has also existed since 1998. The ThemeFinder initiatives at Stanford have been going on for decades. The Acadia Early Music Archive has been going on for decades as well. These organizations didn't have the legal opinions of the Wikimedia foundation to build on, and yet they managed to create something great. You're standing on the shoulders of giants here.
Now, you may be the largest. And you have done amazing things in your own right. But really, that just makes it all the more imperative that you work with smaller initiatives to try and help them with your size and clout, rather than trying to railroad them into agreeing to unreasonable terms that affect their core mission just because their way of doing it and the restrictions they have to operate under doesn't quite jive with your own idea of how things should work.
So, I think this all comes down to Olivier's question, and I really would like someone from the IMSLP team to actually address it:
Is your goal here to help make as many scores available for public access, or is your goal to make these scores available through the IMSLP website?
Wrong. IMSLP is not the only guardian, but one of several. One of this site's explicitly stated missions since its beginning has been to protect the public domain from the endless encroachment we witness. Sadly, this attack comes not only from outfits like Disney and the British MPA but also from the various gatekeepers (whose salaries are even paid for with public funds) who are claiming what amounts to a perpetual copyright upon public domain content of physical objects they don't even actually own themselves - but which are owned by publicly-funded institutions. Once again, the gatekeepers appear to be completely incapable of understanding the concept that custody of a physical object is quite distinct from ownership of any intellectual property contained within the object. Thus we see the public domain under attack and diminished from two sides at once (constant extension of copyright terms on one hand, reduction of the threshold of originality to the point of being meaningless on the other - via the rubric of a scan somehow being 'original artwork').
Andrew is correct that IMSLP is neither the first nor alone in standing up for the public domain. CPDL, The Gutenberg Project, EFF (Internet archive) and others have all been doing this long before IMSLP. What about DIAMM? It's certainly true they are at least trying to offer free access to these things, which has to count strongly in their favor. It's also most unfortunate that they were compelled to take down public domain material because of contractual agreements with gatekeepers making absurd claims of eternal copyright. At what point will the perpetual copyright folks cease their attack? The first thing which pops up the the automatically-generated list of DIAMM items is a printed book from 1597. This book is public domain even in Mexico. If that one has to be removed because it violates a non-existent copyright, what should be next? The BGA? As I stated earlier, we're standing on a very slippery slope indeed. From our standpoint, there's actually a much larger issue here than a particular item's availability on either IMSLP or DIAMM. After all, we discourage folks from uploading CPDL scores here - even ones that state "public domain" on them - because they're readily available over there. So, it's not actually a matter of "everything must be on IMSLP" - despite claims to the contrary made by some here. CPDL isn't going around asserting claims of perpetual copyright on public domain material. Not so sure about DIAMM though.
I can somehow see good arguments on both sides and would like to come back to Notenschreiber's idea of a compromise, trying to find a point of view that could be acceptable for both parties. How about this:
*Both parties agree that the DIAMM items currently on IMSLP are in the public domain, and that IMSLP has no legal obligation to remove them.
*IMSLP appreciates that DIAMM's role as an intermediary between libraries (who frequently take an unrealistic approach to copyright protection) and musicologists (who would like to get access to rare manuscript) requires compromises that go far beyond the actual legal requirements of copyright.
*Because of this unique role of DIAMM as an intermediary, and in order to support the common goal of DIAMM and IMSLP, making public domain music available to many people, IMSLP agrees to voluntarily refrain from hosting DIAMM digitalizations in future (linking to them instead).
*This voluntary agreement can be revoked be IMSLP at any time, e.g. when it becomes apparent that it would no longer serve the common goals of IMSLP and DIAMM.
This seems to be a very good starting point to me. It addresses IMSLP's major concern about bowing to absurd copyright claims made upon public-domain material while giving DIAMM the credit (which it fully deserves) for its own hard work in making these items available for everyone. As I pointed out before, the DIAMM files on IMSLP I've seen are quite massive in size. This is not very useful for anyone who does not have high-speed access to the internet (and we really do have visitors from all over the world), so links to DIAMM are really essential. Over and above this, DIAMM's site has a lot more than the images themselves.
The "gatekeepers," as you call them, are painfully aware that the custody of a physical object is distinct from the ownership of the intellectual property. But they have to take care of the object, and don't have the luxury (like IMSLP) of housing an entire library on a few hard drives. That's why they've made this deal with DIAMM. They WANT this stuff out there. However, all the good will in the world won't keep the air conditioners running, the professional staff paid, the bugs and mildew down, and the public service desk open so that you can consult these treasures for generations to come. So the choice is: do you want to have a few objects imaged, while the rest mildew and mould in a dark basement somewhere, or would you rather support a sustainable system where you pay for any profit-making ventures that use these images, while still having free and un-copyright-restricted access to the intellectual content.
I don't quite understand your perpetual copyright stance. If I were to take one of DIAMMs images, transcribe the contents, and place the transcription for sale, nobody would have a problem with it. Nobody. There is no copyright on the content. Period.
For my own part (not DIAMM) I'm not asking you to remove the images for the reasons of copyright violation. I'm asking that you remove them because it's the best thing to do for the people who care most about these objects. If you truly exist to serve the public good, and not just to uphold the law or further your own corporate goals, then surely you will recognize the difference. The "slippery slope" you fear is only real insofar as your (in)ability to judge between what is right and what is legal.
Furthermore, I would appreciate an answer to my question. Are you looking to have the images publicly accessible, or are you looking to have them accessible on IMSLP servers? Are your servers not privately owned, and privately controlled too?
Last edited by AndrewHankinson on Thu Feb 06, 2014 12:22 am, edited 1 time in total.
I think it's a good starting point as well. Making lower-quality (but still legible) files of the MSS up there available on IMSLP may be a great way to move forward.
Indeed it would. From a practical standpoint, it would be a lot easier for us to have a single, downloadable file of lower resolution of something like the Eton Choirbook than a stack of enormous files like we have at the moment. I'm also betting that those who visit IMSLP on dialup connections would be more interested in exploring an item of this nature (and in hopping over to DIAMM who has far more detailed information on the item than we have the capacity for on a single workpage) if this were the case. As long as it's readable you're just expanding its access to an even wider audience than before.
I’ve been following this debate unfold here and on facebook, and I keep thinking of something Feduol said early on:
“Imagine how can IMSLP be able to forecast all the consequences of a public domain shared on the site? A piano teacher: "Please, could you remove the 1915 edition of Beethoven's Piano Sonata X because this edition have a different fingering I said to my pupil?". Another person: "That piece remember reminds me my grandfather, for charity may you remove it?". Etc, etc, etc... So IMSLP can't take responsibility itself for consequences of any public domain score available on the site. I'm sorry to be rude again, it is just to not take much time with unnecessary discussions.”
Despite several attempts to explain the unique nature of the manuscripts under discussion, I believe it is still unclear to some what exactly is at stake. I think what may be missing is context. With this in mind, I would like to offer some context through my own Beethoven analogy.
Think of your four favorite works by Beethoven. Once you have the names of the pieces in your head, imagine that we are living in a world in which only twenty works by Beethoven have been published, and only one of your four is among those twenty. Let that sink in; you would never have heard those other three works as well as “scores” of others.
Now imagine that someone found a list of pieces by Beethoven that an avid concert goer compiled just after Beethoven’s lifetime, and what do we see - there are forty pieces not among the twenty we know and two of those forty are from your list of four favorites. What would you do to get those pieces back in your life? Really pause and ask yourself, what would you do, what conditions would be acceptable.
So you and your fellow Beethoven enthusiasts scour the world for these lost pieces. You listen to every rumor and read every advertisement and memoire printed in early 19th century Vienna and beyond. Your journey brings you to a library which many say has several rarely examined manuscripts from Beethoven. Some of the older scholars, after bribing their way in, have come out singing “Freude, schöner Götterfunken” or the first few bars of one of your three undiscovered favorites. Unfortunately, they were only able to see a little sliver of one manuscript, and were unable to photograph it, so their mental picture of the work remained too incomplete to transcribe in its entirety. This particular library’s motto is not “I can’t wait to digitize my collection because that will keep my costs down” or “The material in this library belongs to the world and I have no right to keep people from it” but rather, in the words of Gandalf the Grey, “Keep it secret, keep it safe” and “You shall not pass!” They couldn’t care less if these manuscripts ever saw the light of day and its employees consider visitors to be their enemies. You see the remains of several people who tried to get into the library holding signs in their hands saying “digitize now” and “let us in.” These poor souls starved to death waiting outside having gone completely unnoticed by the librarians.
You contact the librarians and ask what it will take to be able to digitize any of their Beethoven manuscripts. The whole time during your communication you sigh to yourself and ask the heavens if only you could simply “ignore this institution because of its unreasonable restrictions.” But you can't ignore them. There are plenty of libraries, like those described by Andrew in his above post, which need basic funds to keep the air conditioning running and the actual physical materials safe, and so are excited about putting up digital forms of those materials on line; but not all institutions are like this. In this particular case, as it is for so many scholars, the evidence took you to a "Keep it secret, keep it safe" library, and if you want to get your favorite pieces back you have nowhere else to go.
After much negotiation, amazingly, they say yes; you can digitize them, but you have to promise that they, the libraries, will keep control of the dissemination of the images, and they can exert that control by being able to tell you to take them down whenever they feel like it.
What would you do? Would you say, “I can’t make that promise” and, with the certain knowledge that you will never hear those remaining works of Beethoven in your lifetime, pick up the signs left by the forgotten and ignored resting outside the library? Or would you say, "yes; we will do our best to make sure that your control of the images is maintained if it means that these images will be freely available to view on our website." Is it a promise you know you can keep; possibly not. Perhaps you are being idealistic, but you are so close to finally being able to hear these works by Beethoven that you agree to their terms.
You begin scanning and find that Beethoven was a real joker. The pieces are not written in score, but are written in some kind of Masonic code that only a few people can decipher. The senior scholar forgot to mention that one. (In case you think I mixed up Beethoven with Mozart, please read Maynard Solomon’s “Late Beethoven.”) No matter, once the images are up, people can decipher them and the works, once deciphered, can circulate to ensembles. You are permitted to make your scans, but only a few at a time. Some of the manuscripts you do get include a coded version of one of your four favorites. Hurray! You will get to hear it for the first time. Imagine what this would be like when you get to finally listen to this piece for the first time. Imagine how much richer you would be. The only trouble is, the code is tedious and it takes a while to decipher, but you are ready for the challenge, and the reward is so great. You also know that the third of your four favorite pieces is still in the library, and that you will be able to scan it soon.
Now imagine that someone else who finds the images pretty, takes them and uploads them onto another site. You are now in breach of the agreement you made with the library and library demands that you take down the image on your site. Reality sinks in. You will never hear those pieces by Beethoven. All of the work that you have done, the scouring, the reading, the time spent learning the code, will have been for nothing, and you will never hear these pieces by Beethoven. Well, perhaps you might hear some excerpts of the one you and other scholars have been working on, a transcription you would have happily uploaded to this other site yourself to help its dissemination, but you will never hear any other “new” piece. Then a glimmer of hope comes through the clouds. The library says that if this other site removes the image, you may put the one from your site back up and continue scanning other manuscripts in the library. But if this does not happen you will not be permitted back in the library, and worse yet, another library which holds the fourth of your four favorites and was about to let you in to scan their collection, now refuses to let you in.
This is the situation in which the users of DIAMM find themselves, except instead of Beethoven, it is Medieval music. We are given scraps of information and sometimes literal strips of paper and hope to find the rest of the page, both figuratively and literally. One scholar has found a few pages of what once belonged to a single book, and knows that these pages belonged to the same book because of a metal rod shaped hole in the pages. You see, the original book was impaled by a rod before the pages of it were taken apart and scattered throughout Europe. Now, this scholar is able to find the position these pages once held in the book by examining the rod shaped hole in the pages, and so has a basis for rebuilding that book. At our best, this is what we do; we piece together history and art one small step at a time, slowly. We decipher the lost works of our Beethovens and make them accessible to performers and learn something about how they did what they did and why. As was noted by Andrew above, if you want to transcribe these works and put those up online, more power to you, and you will be hailed as a hero. That would be wonderful if IMSLP had such resources available, as performers can read modern notation and so the music would be disseminated more rapidly than publications could do on their own, and we would all be richer for it. But by having the images from the libraries up, IMSLP is making nearly certain that those other three pieces by Beethoven will never be heard again. This is neither fair nor ideal; it is simply the cold hard reality of the situation.
If you felt any pang of loss at the thought of losing your opportunity to hear Beethoven and giving Beethoven’s music to the people of the world, I would urge you to reevaluate your position. This is a unique situation that IMSLP is likely never to come across again and so requires careful consideration. What are we doing this for if not to share music with others? Why wouldn’t we want to share as much as possible? Would a little bit of the Ode to Joy be enough for you while you waited impotently for op. 131, starving to death outside a library that couldn’t care less about you or your mandate? If you want more music for the people of the world, if your mandate is to share more music with the people and to make it readily accessible, then you must take down the images. If this is not the case, and music is only given to “the people” if it is given to you and placed on your site, then I think you should reevaluate your mandate with this in mind and make this position clear to all IMSLP users.
Best,
SGM
My understanding is that DIAMM is currently talking to lawyers who have advised Julia not to participate in the discussion. Therefore, I am currently waiting for them to respond to my previous suggestion before discussing too much more.
The compromise cannot be IMSLP unilaterally giving up its legal right to host public domain material (even if reduced from what DIAMM initially wanted). This is why I suggested the escrow of images. Otherwise it would not even be a contract (contracts must be bilateral).
I agree with the spirit of noqu's suggestion. However - if we are to link to DIAMM, IMSLP needs a copy of the images (even if offline, e.g. on a DVD). One of the main policies on IMSLP has been to always keep a copy of all items in the catalog - the reason for this policy is we don't want to end up being a collection of links. Another reason for the escrow.
My understanding is that DIAMM is currently talking to lawyers who have advised Julia not to participate in the discussion. Therefore, I am currently waiting for them to respond to my previous suggestion before discussing too much more.
The compromise cannot be IMSLP unilaterally giving up its legal right to host public domain material (even if reduced from what DIAMM initially wanted). This is why I suggested the escrow of images. Otherwise it would not even be a contract (contracts must be bilateral).
I agree with the spirit of noqu's suggestion. However - if we are to link to DIAMM, IMSLP needs a copy of the images (even if offline, e.g. on a DVD). One of the main policies on IMSLP has been to always keep a copy of all items in the catalog - the reason for this policy is we don't want to end up being a collection of links. Another reason for the escrow.
Just a few notes:
There's no escrow since you have the right to do whatever you want with your own pictures, even if you don't have any copyright on them. And the pictures can be downloaded very easily... you proved it.
You are not only hosting the pictures, you are also publishing them. Which is definately legal according to copyright but which is something very different.
If you want to be the actual guardians of Public Domain, please take a pragmatic action: download all the PD pictures from DIAMM (you know how to do it) and keep them offline unless DIAMM's copy goes down. But one DVD won't be enough... the spanish pictures only (~500 out of ~20000) are already 11 GB. Let's start with these ones before they actually go off-line...
Legally the status of digital media is complicated but doesn't it really come down to integrity? When you sign up for and also when you sign in to DIAMM you agree to abide by the limitations they have agreed to in order to make their images available. DIAMM is a fabulous resource and is the investment of time and money by our colleagues and friends. This major and public breach of trust needs to be amended so that we can all work together towards the common goal of high-quality, digital access to music manuscripts.