At 8:44 AM -0500 1/9/09, Kim Patrick Clow wrote:
Good Day:
I am curious about the copyright situation with the Berlin
Sing-Akademie reproductions. I know of a friend in Europe who has
asked permission to publish editions of 3 items in the collection but
only given permission for one. The situation in the United States is
obviously different because, and I believe I have this correct--
original manuscripts of music older than 75 years old is public
domain. But technically, could the company that has created the
microfiches technically still come after me ( I mean in a legal
sense)? Or would it be the institution that has the Berlin
Sing-Akademie manuscripts?
I have heard on the rumor mill, that a certain Bach scholar is pretty
much in charge to the Bach library that was discovered in the Ukraine,
and is VERY restrictive about who sees what. Which if true, I find
rather sad and odd considering the music was unavailable for so long.
I have no direct information, Kim, but will ask whether any of my
colleagues do.
Here's the problem. Under some copyright laws (and I believe this is
true of U.S. law), previously-published works from the 18th century
are indeed public domain, but previously-UNPUBLISHED works are
subject to a modern copyright when they are published in a modern
edition. (It would be worth researching the law to make sure I
understand this correctly.) If this is true, then a savvy modern
editor has a HUGE incentive to be the first to publish them, and
therefore to obtain that valuable copyright. I would assume that
anything published in either the BG or NBA editions would not fall
under this provision of the law (the BG being public domain and the
NBA still being in copyright at this point), but if any of the
manuscripts are indeed previously unpublished then this part of the
law gets triggered.
But this is complicated by a different factor which is completely
outside the copyright laws. That is the actual ownership of the
physical property that embodies the intellectual content. (In other
words, the paper as opposed to the notes on the paper.) This
ownership can belong to an institution (library or museum, or in the
case of Verdi scores a publisher) or to an individual, and while I
re-emphasize that this has NOTHING to do with copyright ownership, it
does give than institution or individual the power to control or even
to withhold access to the materials.
If, indeed, a company that does not actually own either the
manuscripts themselves or a copyright in those manuscripts created
microfiches from them, it triggers still other questions: Do those
copies constitute a modern publication? (My understanding is that
facsimiles are not considered new editions and therefore cannot be
copyrighted, but I could be wrong.) And were the copies created with
the permission (and perhaps under contractual obligations) of the
actual owner. Yeah, this is why copyright attorneys get the big
bucks!
No, it isn't fair and it isn't reasonable, but then nobody ever
claimed that the law--whether property rights law or copyright
law--is either one!
John
--
John R. Howell, Assoc. Prof. of Music
Virginia Tech Department of Music
College of Liberal Arts & Human Sciences
Blacksburg, Virginia, U.S.A. 24061-0240
Vox (540) 231-8411 Fax (540) 231-5034
(mailto:[email protected])
http://www.music.vt.edu/faculty/howell/howell.html
"We never play anything the same way once." Shelly Manne's definition
of jazz musicians.
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