Digitizing old music
- July 30, 2004 @ 9:52ampackrat says:I'm interested in digitizing some old (pre-1923, mostly mid to late 1800's) music books and musical scores found in US libraries but most of which were published in Germany.
What are the legalities involved in non-US copyright? Is there a "public domain" concept in European copyright? What are (and where can I find) the length of European terms of protection? Can I legally digitize such old published music? Or are such rights controlled for much longer periods of time (even "forever"?) by European publishers, archives, libraries, etc.?
As a related issue, years ago I thought I once read that the copyright of digitized images is owned by whoever did the digitizing. So, if I digitized such old music, would I be the copyright owner of those *images* (not of the original music, of course)? Or are there other considerations involved? Would I be legally able to make these digitized images (or "cleaned up" versions from Photoshop) publicly available?
Thanks in advance for comments and advice! - July 30, 2004 @ 11:15amross says:Wow... interesting question. I don't know really much of anything about the international copyright question, so hopefully someone else does? That would really dictate how much you would be able to do with the works...
As for the issue of what copyrights you would hold, that's somewhat debatable... You would in theory hold copyright on any creative elements that you add to the original works, including some sorts of minorly creative organizational effects, etc. There is, however, a concept in copyright law called 'merger', which says basically that if a work presents something in a way such that the new representation basically *is* the other thing, then then you can't have a copyright over the new representation. The idea is that if there's only one way to show something, you can't control it, because by doing so you would be controlling the underlying elements. Scanning a page would, I think, be subject to this. Still, any creative efforts you put in after that would be copyrightable. - July 30, 2004 @ 12:57pmCStewart says:Have you seen Peter Hirtle's excellent Copyright Term table?
- July 30, 2004 @ 1:05pmpackrat says:Thanks for the response! (Looking for others as well.)
Let me share a bit more information which may clarify my particular situation. (However, I'm really interested in the more general case for other future plans.)
I'm a librarian, and what I'm describing is a personal interest applying some of my library knowledge. This is a project done "for the love of it". My intent is not any commercial venture whatsoever. Rather, my intent is to preserve this music for the future and to make research into the particular kind of music easier, where a lot of scattered works would be gathered into a single collected electronic archive on CD-ROM.
My reason for asking about copyright of the images is that I'd like people to be able to freely use the end result but I'd also like to prevent anyone from financially profiting from my "labor of love" efforts, sort of along the lines of the GNU General Public License or some of the "open source" software licenses.
Hope this gives more specifics about my particular case, but please keep my more general original questions in mind, too. Thanks! - July 30, 2004 @ 1:33pmross says:That's an interesting spin on things - using copyright to enforce something's being freely available. I don't know that you'll really be able to claim copyright, though, especially if you're just scanning documents - annotations, organizational content, etc, would certainly be protected, but not the original source material. I guess that the best thing to do might be to release them freely, and hope that free accessibility will render people selling them rather superfluous... I'm not sure... anyone else have a firmer background on merger, etc?
- August 1, 2004 @ 4:47pmJPilch says:I’m not an expert on U.S.-German copyright relations, but I can give you some pointers based on my knowledge of international copyright from studying U.S. relations with Eastern Europe.
Yes, there is a public domain concept in Europe just as there is here. The important thing to know is that the current U.S. copyright law governs use of eligible foreign materials being used in this country. Eligible works are, generally speaking, copyrightable works originating in, first published in, or created by an author whose is a national of a country that has reciprocal copyright relations with the U.S. under an international copyright convention. Once you know that reciprocal relations exist between the U.S. and the country of origin of the work, you need to look at U.S. law to determine how the work may be used in the U.S.
Germany has reciprocal relations with the U.S. under the Berne Convention. The length of copyright duration in Germany is 70 years from the death of the last surviving author (the terms for anonymous, pseudonymous works are calculated from creation or publication date), but that doesn’t matter so much, as it is the U.S. term that applies under the principle of national treatment --countries that share reciprocal copyright relations provide the same protection to foreign authors that they provide to their own nationals.
So if these works are pre-1923, they are in the public domain in the U.S. regardless of their status in Germany. There can be situations in which works are protected for more/less time in the U.S. than they are in the country of origin—that’s how international copyright works. Since these works are in the public domain, I don’t think there is anything to stop you from using them.
As for your second question, I am inclined to think like Ross. If you add original content to works in digitizing them, to create a derivative work, or if the selection and organization of materials that you digitize renders your work a new work, you can claim copyright, notwithstanding the existing rights of the copyright holders of the “original� content (for whom you would have to seek permission to digitize). But making a straight (“slavish�) copy of a work would not give you copyright in the digitized image. In my opinion, “cleaning up� an image would not either, as it is not creating an original work. I hope this helps… - August 6, 2004 @ 3:53pmpackrat says:"pilch" said:
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The length of copyright duration in Germany is 70 years from the death of the last surviving author (the terms for anonymous, pseudonymous works are calculated from creation or publication date), ...
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Yes, I found out the same thing from reading the German copyright law as well as the European Union copyright agreement.
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... but that doesn’t matter so much, as it is the U.S. term that applies under the principle of national treatment .... So if these works are pre-1923, they are in the public domain in the U.S. regardless of their status in Germany. There can be situations in which works are protected for more/less time in the U.S. than they are in the country of origin—that’s how international copyright works.
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So, if one of the collections (published in 1910) is by a composer who died in 1933, it's now in the public domain in Germany but still protected under copyright in the U.S.? In a larger context, this has interesting implications for anyone who would put old material on the web, right?
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If you add original content to works in digitizing them, to create a derivative work, or if the selection and organization of materials that you digitize renders your work a new work, you can claim copyright, notwithstanding the existing rights of the copyright holders of the “original� content (for whom you would have to seek permission to digitize). But making a straight (“slavish�) copy of a work would not give you copyright in the digitized image. In my opinion, “cleaning up� an image would not either, as it is not creating an original work.
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It would appear, then, that I cannot protect the thousands of hours of personal effort that I would spend on such a project from possible financial gain by others. This makes no difference to my private use, but it would seem not to be a good incentive for sharing. That's the way the copyright ball bounces, I guess. (I'll probably still eventually share my efforts anyway.)
Your response seems to imply that, if I were to create a new collection of individual musical pieces derived from several collections (perhaps they're all based on the same melody or perhaps they're all written by the same composer, though spread among several collections), the result would be a "new work" because the selection and organization is completely different, even though each piece in this new collection might be visually identical to its appearance in its original collection. Is this a correct interpretation? It sure seems "slippery" because my question then becomes, what's the difference between the lack of originality from digitizing the original collection versus the originality of including the identical digitized version in new surroundings? If I had three collections of musical pieces and shuffled all the pieces together and then rearranged them into three new groupings of the same pieces, it sounds as if the original three digitized collections could not be copyrighted but the three randomly arranged digitized collections could. Additionally, could the "new" collection be copyrighted if the music were reformatted and reprinted using modern musical notation software, rather than retaining the original published appearance? Did I correctly interpret what you and Ross said? It sure sounds strange in practical terms.
This raises another interesting question related to my original situation. My plan (who knows if I'll live long enough or have enough time to do it completely; I may only do it partially) was, rather than or in addition to providing "cleaned up" pages of music suitable for a local desktop printer, to create MIDI files of the music on the pages. Then, additionally, the MIDI files could be run through musical notation software such as Finale or Sibelius and converted into scores again that had the same musical content as the originals but were not the identical visual expression as the originals.
So, my question is, where is the line between creating a digital electronic analog of the visual appearance of published music (which is intended for perception by the ear rather than the eye) and creating a digital electronic file that will play the music using electronic means?
I'm assuming, of course, that a MIDI file would be considered to be a "derivative work" (and, thus, *different* from the original). Obviously, I would have to perform the music in order to record it into the MIDI file. However, my performance would not necessarily have to add anything new to the music--I could record the exact notes and durations without any of my personality (that is, no "originality") coming into the picture. So, are these MIDI files (performed from the original scores, essentially an electronic player piano version) protected by copyright or not?
Both of these examples are cases of transforming the medium of expression--in the one case, transforming ink on paper to electronic data bits representing an image, and in the other case, transforming ink on paper to electronic data bits representing a performance of the music.
The final possible step of creating and reprinting scores from MIDI files presents some interesting issues in itself: the words in a book, for example, are one way of expressing the idea(s) contained in the book--that is, the same idea(s) could be expressed in other ways (other words and arrangements of words) by other authors without copying or infringing on the copyright protection of the original. However, with music, there's only one standard way of expressing the music: pitches of certain durations have to follow other pitches of certain durations in the proper sequence and, usually, also sound at the same time as other pitches, etc. (This is made practical by worldwide agreement on standard musical notation.) If the melodies, harmonies, rhythms, etc., are changed, it's no longer the same music. Thus, to reprint the music from MIDI files based on the original scores will necessarily end up with the same pitches in the same relationships with each other as in the original scores. In other words, the "new" scores will be the same as the "old" scores except they will be perhaps formatted slightly differently or look a little more up to date in appearance, etc.--however, they will still essentially be the same musical score. So, are the "new" scores protected by copyright or not?
I think these are all interesting questions regarding copyright law related to the digitization of older materials. I'm looking forward to hearing responses. Thanks! - August 6, 2004 @ 7:09pmCOvalle says:I believe that an exact digital recreation is not copyrightable. If I recall correctly, it would be considered a derivative work of a work that is in the public domain. Because the original is in the public domain, and the digital recreation does not possess original material, then the derivative would also be in the public domain.
According to the RIAA, a MIDI is considered a performance of the music. http://www.drake.edu/journalism/CenturysEnd/musmidi.html
Of course, I'm not really sure... I'd like to hear what others have to say. ^^ - August 8, 2004 @ 7:12pmJPilch says:This is an attempt to provide some further detail on some complex questions, but please keep in mind that I am not a lawyer and these are just my thoughts...
Packrat wrote: So, if one of the collections (published in 1910) is by a composer who died in 1933, it's now in the public domain in Germany but still protected under copyright in the U.S.? In a larger context, this has interesting implications for anyone who would put old material on the web, right?
The work published in 1910 by a composer who died in 1933 would be in the public domain in the U.S. (because it was published before 1923) as well as in Germany. But if, for example, a similar work were published in 1925 and the composer died in 1930, the work would be in the public domain in Germany but still protected in the U.S. until 2020. The U.S. term for an eligible foreign work published in 1925 is 95 years from publication.
Packrat wrote: It would appear, then, that I cannot protect the thousands of hours of personal effort that I would spend on such a project from possible financial gain by others.
I think that's true.
Packrat wrote: Your response seems to imply that, if I were to create a new collection of individual musical pieces derived from several collections ... the result would be a "new work" because the selection and organization is completely different, even though each piece in this new collection might be visually identical to its appearance in its original collection. Is this a correct interpretation? ... what's the difference between the lack of originality from digitizing the original collection versus the originality of including the identical digitized version in new surroundings?
As I understand it, the difference is simply that copyright law recognizes "originality" in a new organization/selection copyright of material, whereas is doesn't recognize originality in a technical process like digitizing or cleaning up. If you look at this like an edited collection of writings, the compiler can obtain copyright because of the intellectual work that goes into compiling the work... but the printer can't obtain copyright in the technical process.
Note: Some nations' copyright laws grant limited copyright protection in the typographical arrangement of a work, typically 25 years, but the U.S. does not grant this right. There is also in come countries a "publication right" designed to grant a limited term for publication of previosuly unpublished works. The publication right gives rights equivalent to copyright to a person who publishes for the first time a literary, dramatic, musical or artistic work or a film in which copyright has expired. Publication right only lasts for 25 years from the publication of the previously unpublished material. The U.S does not grant this right.
Packrat: Additionally, could the "new" collection be copyrighted if the music were reformatted and reprinted using modern musical notation software, rather than retaining the original published appearance?
I think the answer to this question is no. Copyright is said to be "format-neutral". Just changing the format does not allow one to obtain copyright in a work.
Packrat wrote: In other words, the "new" scores will be the same as the "old" scores except they will be perhaps formatted slightly differently or look a little more up to date in appearance, etc.--however, they will still essentially be the same musical score. So, are the "new" scores protected by copyright or not?
Cjovalle wrote: According to the RIAA, a MIDI is considered a performance of the music.... If I recall correctly, it would be considered a derivative work of a work that is in the public domain.
I don't think I am qualified to answer this, as I don't understand the technology well enough. I would be inclined to say that the new scores are not copyrightable because they are not original enough, but there is no magic formula upon which we can judge that. But I do know that if MIDI is considered a derivative work, the derivative work would be copyrightable as an original work. Derivative works based on public domain works are still eligible for copyright protection. It's just that you don't have to obtain permission from a copyright holder to create them as they are freely available for use.
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