Klarinet Archive - Posting 000765.txt from 1998/08

From: Oliver Seely <oliver@-----.EDU>
Subj: [kl] Re: Copyrights
Date: Fri, 28 Aug 1998 10:08:34 -0400

For those of us offering different forms of music to everyone with a
connection to the Web and making it freely available, all of us need
to maintain awareness of the letter and spirit of whatever copyright
laws may affect what we do. To that end I want to respond to three
things Sarah Jones wrote earlier this month:

"No one would argue that music is uncopyrightable." For my taste
I would have added, "except if such music has passed into the
public domain."

Secondly, in her comment about the case that involved the white pages
listings, that "there is really no comparison to music copyrights,"
my reading of what she wrote gave me the impression that somehow
music copyrights are
fundamentally different from copyrights on textual material. In a
message from an information officer at the U.S. Copyright Office
this morning I was told that "The law makes no distinction between
the use of [sheet] music and of text." (I had specifically asked about
sheet music and NOT phonorecordings or performances.)

Finally, Sarah's remark to "be careful to use original editions [published
before 1923]. If it can be proven that you copied from someone else's
copyrightable arrangement, you are infringing."

For my taste, herein lies the conundrum for all of us, who on the
one hand do not want to infringe on anyone's copyright but on the
other want to exercise our freedom to copy public domain
materials as we please, find ourselves.

I have a xerox copy of Mozart's autograph of KV 452 taken from a
microfilm I found in the University of California at Berkeley library.
I also have a published version of the same work. The note placement,
the dynamics and articulation all appear to be identical. Section 103b
of the U.S. Copyright Act says

"The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished
from the preexisting material employed in the work, and does not
imply any exclusive right in the preexisting material. The copyright in
such work is independent of, and does not affect or enlarge the scope,
duration, ownership, or subsistence of, any copyright protection in
the preexisting material."

That is, if a derivative work contains material already in the public
domain, that public domain material does not enjoy copyright
protection and may be lifted from the work and republished without
anyone's permission. Sarah's catch phrase is of course, "someone
else's copyrightable arrangement." If I was at the disadvantage of
not being able to look at Mozart's autograph of KV 452 I'd be in a real
dilemma. How would I know if the published work was copyrighted
by virtue of changes from the original autograph in one percent of
all the measures and was therefore claimed to be an original "arrangement?"

Sarah's admonition to "be careful to use original editions, however" is a
good one to which I'd add only, "or any edition published by the
composer who died before 1923."

The problem for all of us who wish to make public domain music
freely available and to be able to make unlimited copies without
worrying about infringing on anyone's copyright is to be able to find
those early editions and to extract our own computer generated
versions from those editions.

I would hope that as the Grand Bibliotheque in Paris and other
libraries with fine musical archives go on line, more and more
facsimiles of autographs and original editions will
become available to the world so that we all can make our own
derivative copies. My guess is that a substantial political fight on
this point looms and it will be most interesting to see how it plays
out.

Oliver

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