Dear lute list members, as some of the original source of lute music are in German libraries and part of the publishing is also done in Germany, I thought it might be useful to write what I have found out about the legal situation with respect to contractual restrictions imposed on persons obtaining microfilms from libraries and the German copyright. I think this is also relevant to the controversial views recently expressed on the lute list.
For those of you able and willing to read layers German I found three links specifically dealing with the usage of manuscripts in public libraries: http://www.bibliotheksverband.de/dbi-berlib/dbi_pub/einzelth/rechtpub/handsch1.htm http://deposit.ddb.de/ep/netpub/89/96/96/967969689/_data_stat/www.dbi-berlin.de/dbi_pub/einzelth/rechtpub/handsch1.htm http://deposit.ddb.de/ep/netpub/89/96/96/967969689/_data_stat/www.dbi-berlin.de/dbi_pub/einzelth/rechtpub/handsch2.htm At least part of the authors of these links believe that public libraries can not deny you to publish a manuscript in their possession. In short, their argumentation is as follows: The library only owns the physical object not the content of the manuscript. Publishing the music does therefore not affect their rights as owners (they can however deny you the access to the original if they fear it might be damaged). Restriction in publishing the content affect for instance the freedom of science, the right of free access to information and freedom of speech. While it is clear, that libraries in principle can restrict rights by their "terms of business", experts do not agree wether this may go so far as to restrict such important laws as above. About copyright: German copyright on a piece of music expires 70 years after the death of its creator (composer, arranger). So, apart from modern compositions and intabulations or arrangements, all lute music is in the public domain. There are two situations where one can obtain a copyright on a specific _edition_ of public domain music. 1. The edition is a "scientific edition" ("wissenschaftliche Ausgabe") 2. It is the first edition of previously unpublished material ("Editio Princeps") A "scientific edition" must be the result of scientific work and it must be substantially different from all known previous editions of the work. I think D. Poulton's edition of Dowland's solo lute music is a good example for such an edition. The music had been collected from a lot of different sources. Errors have been corrected. A list of references has been added. Thus scientific work has been added. I don't know wether correcting a few misprints already makes an edition "scientific". It would perhaps not be substantially different from the original. I also don't know wether adding a scientific work to a facsimile edition would make the complete edition a "scientific edition" or wether this would only apply to the added material (as in US law). Anyway, a pure facsimile edition is not a "scientific edition". You may not copy a "scientific edition". You may not typset it newly. If you perform or record the music _from this edition_ you might have to pay royalties. The Copyright on a "scientific edition" expires 25 years after it was first published. An "Editio Princeps" is the first edition of a piece of music that was never published before. Thus this part of the copyright law only applies to lute manuscripts and not to historical prints of lute music. The person who first publishes or performs (!!) a so far unpublished piece of music, owns the rights overs the music for the next 25 years! Thus the lutenist who is first to publish or perform in public a previously unpublished piece of music, can ask for royalties form all other lutenists that play the piece. Personally, I think this regulation is unbelievable. However, a pure facsimile edition of a printed book of lute music is not protected by copyright, since neither of the above situations applies You may copy the music by hand, typeset it newly and spread your version for free (I had this confirmed by the VG-Musikediton, an organization collecting royalties for copyrighted printed music, www.vg-musikedition.de) You can probably also do so with a microfilm obtained from a library (if the considerations above about library restrictions being illegal are correct) You may however not photocopy the facsimile or microfilm, since then you would violate the copyright on the _photo_ the library or publisher has produced. Even that is questionable, however, since the copyright law requires a minimum of creativity involved in making a photograph. Some experts believe this is not given for facsimiles. However, if you _sold_ your edition in Germany you would perhaps violate a German law against unfair business practices ("Gesetz gegen unlauteren Wettbewerb, UWG"), because you would use somebody else work for your own profit. In this case the publishers/libraries work to produce the facsimile/microfilm. Spreading the music for free is alright. For those who have read so far: I don't take responsibility for the correctness of what I have written. I am happy to hear about corrections or additions. All translations of German words are mine. I don't know wether they are correct and wether there is an "official" translation. Best wishes, Stefan Ecke
