On Jul 25, 2006, at 3:36 PM, David W. Fenton wrote:
I could be wrong here, Andrew, but I thought recent case law changed
this in the US. There was a great deal of coverage in the NY Times
about the problems the new court decisions were causing for those
publishing monographs that were based on private, unpublished
correspondence. I'm pretty certain that US law in regard to
unpublished MSS is now the same as European law, i.e., that the MS
owner holds copyright to its contents, and you can't publish without
their permission.
No, AFAIK a distinction was drawn between the creator's heirs and
other people. If I have a letter from my famous great-grand-dad, I can
copyright it. But if I fail to do so, and then sell it or donate it to
someone else, it enters the public domain. I *can* transfer my rights
in the letter to a third party, though, just as with any other
copyright.
The last time this subject came up on this list, the example was given
of a hypothetical letter by George Washington. The list agreed very
strongly that if I find such a letter at a garage sale, and buy it,
that I cannot by virtue of that copyright the thing.
The Supremes' decision was based on the fact that congress had never
placed a time limit on the copyrightability of an MS, and so made it
indefinite w. an invitation to congress to act--wh. it has failed so
far to do. The Supremes also placed a time limit on their own decision,
I think 25 years, at the end of which time it was assumed everyone with
a valuable old family archive would have had plenty of time to
copyright it. That 25 years is almost up, and my understanding is that
if no legislation has intervened by then, that the common-law 100-year
limit will be reinstated. I could of course be totally wrong about all
this.
An issue definitely *not* affected by this is the question of unique
copies of old published editions. If a library or individual owns the
only copy of a work whose copyright came and went a century ago, they
can restrict access to the physical copy, but they cannot claim any
intellectual property right in its contents, nor legally prevent its
republication by anyone. I believe the same applies to works published
prior to the institution of copyright, but once again, I may be wrong.
BTW, my own editions of A.P. Heinrich based on MSS in LOC are not
entirely relevant to this discussion. LOC bought the Heinrich
*Nachlass* in 1920 from a used-book dealer, so LOC owns them outright.
The library's holdings are legislatively defined as belonging to the
entire American people, so these MSS are unquestionably PD even if
current law says that the 3d-party owner of an antique MS may copyright
it.
. . . The copyright in such an edition
belongs to the creator of that edition absolutely, and does not
require the approval of the library holding the MS. I have published
numerous such editions, and believe me, I know what I'm talking about.
I don't have a citation handy on this, but I think this has changed
in the last 10 years.
Once again, the unique position of LOC may have affected my
understanding.
Andrew Stiller
Kallisti Music Press
http://home.netcom.com/~kallisti/
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