It has come to our notice that an individual has published images of a number of manuscripts photographed by DIAMM and several of our partner libraries on IMSLP. I appreciate that this person probably felt they were providing a service to his fellow researchers and musicians, but in fact he may have single-handedly damaged or even destroyed the future of manuscript image delivery online.
Not only is this a breach of the copyright licence signed when creating an account with DIAMM, it is also a very serious breach of trust that will affect every member of the academic community. Web publication is governed by the same publication copyright as print publication: the only thing that you may reproduce from a web page without infringing copyright is the URL of the page.
Many people appreciate the extraordinary access that DIAMM provides to a wealth of music manuscripts that for most people would be impossibly costly to visit or to buy images for themselves. DIAMM is free, and many libraries also provide their images free. This is an extraordinary service, and one that perhaps we take for granted without realising how much it would matter to us if suddenly it was no longer available. We tend to think of access to manuscript images as our right, yet it is given to us as a courtesy by the owners of the documents.
It has taken decades to build relationships with libraries and archives and to persuade them to digitize their materials, usually at enormous cost. The cost to DIAMM alone to digitize the manuscripts we have photographed is well over a million GBP, yet we make them available to users without charge, a service that costs us a significant amount of money every year, all provided by government or private grants, or with money raised through publications. DIAMM in particular has only been able to survive and grow because of the trust that depositors place in us by allowing us to deliver images of their manuscripts. Our long record of respect for, and protection of, copyright is our great strenght, yet that is now in jeopardy. The upload of copies of our images - and those of other libraries - without permission has brought into doubt the future of DIAMM, since depositors will remove their images if we cannot ensure that users respect the rights of the document owners. In many cases it has taken years (in one case over 7 years) of careful negotiation to persuade libraries to allow us to digitize their documents and put them online. Outside DIAMM many libraries did not put their own images online, and some still do not, because they were/are concerned about rights infringement of this sort - it seems with good justification. Only recently are libraries beginning to put their manuscripts online, and this may stop if users abuse that trust.
Already two libraries have asked us to withdraw their images from online use; carefully negotiated licences with some libraries are likely to be withdrawn, and the images that are lost will not appear anywhere else on the web since the owners believe that the user community cannot be trusted not to redistribute them without permission. We are in the process of negotiating the rights to put over 25,000 new images online, and these negotiations have now stopped until this matter can be resolved: the manuscripts may not be digitized at all, and if they are they may never appear online anywhere. The actions of one individual may therefore mean that many manuscripts that would have otherwise been made available to our community will never appear in a public space.
It is deeply upsetting that the thoughtless behaviour of a single individual should have such far-reaching and damaging consequences for the global research community.
I hope you will join me in censuring the behaviour of this individual and persuading him that, far from helping researchers, he is going to hinder future manuscript access for every potential user - amateur, professional, academic - worldwide.
Replies
It seems that you are seriously looking for a legal advice and you will hardly be surprised not to find it here (of course, I cannot judge Gillian's advices for Julia, who knows). I am quite sure that being anachronistic had been always the main problem of copyrights. Therefore I found some historical remarks of Olivier Berten quite interesting, especially because the development of new distribution technologies does not only precede legal regulations, so that they have to adapt, they also gave birth to the concept of copyright itself.
The history of print technology shows that rights to print started with the very beginning of this history. The Accademia Venetiana della Fama was a very ambitious company which claimed the rights, not only to publish the books of science, but also all law texts of Venice. It was not just copyright, it was political power connected with it. It became one of the great scandals of Venetian history, and soon after this fiasco nobody did ever mention again the name of this Venetian academy... Nevertheless, the American claim mentality was born precisely here, long before European immigrants set them.
Concerning the music, I remember that my dear colleague Enzo Amato argued that 18th-century composers who are now regarded as the great names of music history, plagiated composers of the Neapolitan school:
Amato, Enzo
La Musica del Sole: Viaggio attraverso l’insuperabile Scuola Musicale Napoletana del Settecento
Prefazione di Vincenzo De Gregorio
Luogo, Editore, data: Napoli, Controcorrente, luglio 2012
ISBN: 9788889015957
Prezzo: Euro 20,00
An important book, but I doubt that his view, based on current copyright regulations, could have been the one of musicians during the 17th and 18th century. Since the Renaissance period musicians usually came to Italy in order to learn from great masters (like Froberger from Frescobaldi). They did imitate their music, their style, and they used their soggettos for own compositions. But it was already no longer necessary to be in Italy. Johann Sebastian Bach for instance used a complete mass composition by Caldara and added 4 other voices.
But the point of Enzo Amato was another one, during the presentation of his books in one of the oldest book shops here at Naples (which has unfortunately closed down some months ago) he complained about the fact, that students of the conservatory San Pietro di Majella do not learn anything about the local school and its importance for music history, while musicians all over the world come here for their pilgrimages for historical places. À propos, Niccolò Jomelli became the composer at the private opera house at Ludwigsburg and the librettist Daniel Schubarth (today only known as the poet of "Die Forelle", but as a prisoner of the Count who owned the opera, he inspired Schiller to write his drama "Die Räuber") wrote, that it became a fashion in churches of his time to use arias by Jomelli, executed desperately with a liturgical text, and Schubarth promised that he will write new texts which will do a better job.
As far as I know, the first copyright trial in music history was connected with Brahms' "Hungarian Rhapsody". The composer was accused by one of the famous Czárdás musicians of Budapest, that he stole his melody.
The idea of a philological edition of music developed about the same time. The impulse was probably, that even educated musicians had no longer the knowledge to perform music of the past properly. In the time of Corelli, it was clear, that diminutions were usually not written out (as did Bach for his sonatas in Corelli's style.
During the 19th century, I had to study a lot of editions (especially of Bach's compositions), when I worked for the archive of the Berlin Philharmonics. We just did a database of their partitions, and IMSLP was a very important online resource to do this work. The advantage is, that it has everything, the disadvantage, the sources are usually not that well described as by the person accused here, so you had finally to go to the library anyway, to understand what the material really is to classify a historical edition.
The historical-critical edition or "Urtext-Ausgabe" established during the 1950s, of course, since Philipp Spitta there had been ideas which leads to this historical concept. Before we had useful experiments like Wanda Landowska's re-transcription of Bach's piano compositions according to Le Couperins ornament signs or Busoni's and Mahler's reflections how to adapt old partitions to the sound of modern instruments. I remember a friend, who was excluded in a Gamba competition in Germany, because she played directly out of facsimiles! Can you imagine, that was still a criterium!
I once met the director of the Neuköllner Oper at Berlin, who made a production of Viktor Ullmann's opera "Der Kaiser von Atlantis" (it was composed at the Nazi KZ Theresienstadt). He told me that he had to contact the Goetheaneum in Dornach. They send him a copy of the autograph. He said that the house had to pay the rights to Schott publishers, but its edition was so useless and mainly responsible for the fact that this opera was hardly ever played (this includes the wrong title under which it was published and under which it is known until today).
You can also argue, whether medieval manuscript are not already fulfilling the function of an edition, for example with Troubadours chansonniers. But it was hardly made for musicians who were interested in the Troubadours' intentions, but for very rich clients who wanted a manuscript with courtly poetry as a wedding gift. The original concept was the Arabo-Persian divan, which had been developed by the 9th century, when Baghdad held a key position for an urban music culture, and certain local authorities had prestigious salons or academies with a famous singer, who was a domestic slave. They made own anthologies which were personally dedicated to the patron's family (Johannes de Grocheio still used the same concept). It was first of all this: exclusive!
Copyright protects the intellectual property rights of editors, web authors, photographers and other authors of works, or those to whom those rights are ceded. This is elementary and I would ask you to retract your statement about every published score, which I would reasonable understand to include editions, is in the public domain. By the way, medieval music is seldom present as a score, but in parts. To call them "scores" is anachronistic and incorrect.
I find it fascinating that my efforts to focus this discussion on other issues such as ethics and issues of the conservation of cultural heritage have been constantly sidelined in favour of running in circles on matters of copyright that are ultimately the purvey of judges. As precedent shows, issues of originality and the reproduction of works in the public domain have been and will continue to be decided in various courts of law according to the judicial interpretation of the governing legislation. And globally there are points of contention on these fundamental issues. We are not likely to find consensus on this matter in this forum.
The key question is should one individual have broken his agreement with DIAMM and have redistributed as he pleases the images obtained by deliberately working around DIAMM's image delivery interface. When one individual acts so as to compromise the rights of others (and I believe their are several aggrieved parties in this matter), how might we judge those actions?
It remains simply incomprehensible, given projects like the well-regulated Europeana, eCodice, etc. that the individual's actions are consistent with the common good and ethical codes of conduct. Do you see other well-regulated open domain projects simply taking another project's resources? No. They seek the other party's permission or have existing agreements already with them as part of a larger framework. This is only reasonable.
The score and the music it represents are 2 different things protected by different copyrights. Lot of the music contained in the manuscripts (which is the only thing that could still be under copyright until 2039) has been subject to "issue of copies to the public". Even though the physical representation of it might be different from the one in the manuscripts. These editions, if not older than 25 years, are still subject to copyright. The original edition is not.
But I wonder why we are talking about that publication topic since the duration of the copyright is anyway related to the death of the author or the year where the work has been made or made available to the public (1988 Section 12)... and the provisions for unpublished works from the 1956 act concern only engravings and photographs (1956 Section 3) and music that's been neither published nor performed (1956 Section 2)...
I can think of no medieval manuscript that was ever published as defined in Section 175 of the Act. But this is pointless since since the question concerns images and now editions.
Publications, including websites and musical editions and their contents are protected by copyright - this is set out clearly in Section 1. Reference to Section 175 (above) is sufficient for publications. Reference to Section 1 and Section 8 (2) is sufficient in regard to editions. One might add that a manuscript by definition cannot be a typographical arrangement. You go too far in suggesting otherwise.
To end with a fitting paraphrase for this forum: Tout par compas est-il composé?
Olivier Berten a dit :
Jason Stoessel a dit :
As a simple citizen who also gives credit where credit is due (just like Feduol does when posting on IMSLP), I don't think I need a PhD in musicology for checking if there are wrong notes, what's the originally written tonality of the piece, or the original time signature.
About your question, I don't think this forum is the best place for discussing whether music performance or study "best protects a culture's so-called patrimony"...
It's seems banning users without letting them talk isn't a practice reserved to IMSLP... see http://imslp.org/wiki/User:Feduol
About my relation to IMSLP, I'm an occasional user of that website like pretty much every musicians I know. That website being advised as a very valuable source by many universities and music schools.
I am very pleased that jurisdictional matters like copyright can provoke such an activity here. I read your opinions with great interest and it does not matter, whether I can agree or not, although I fear that Julia was right, when she wrote that it generates more heat than light. Just imagine your students who have now to use facsimiles, because it has become a standard for a philological study or even for an accurate analysis of its musical and poetic structure, they will be now very confused concerning their rights and their duties. The usual procedure is very simple, you should get in touch with the library and you exchange the permission with one or more free examplaries of your publication. It is simply an agreement, but not a granted right.
On the other hand, I do not agree with Julia, that cultural world heritage which you can register at the UN, belongs to somebody's private sphere like some nippes objects in the living room (the common procedure here in Italy is that every registered monument gets a lot of money, about 10% arrive at the restaurators to do their work to preserve it for the future!). Private collectors who sometimes pay great sums to wash their money, which is beyond the budget of any public collector like a director of a manuscript department, know that. Artists usually feed them with forgeries in order to survive. The usual experience concerning copyright trials is, that these rights are not so easy to defend as the material owners thought, when they got engaged to it.
I could also tell you about some absurd scenes between contemporary musicians and composers and the GEMA in Germany, which has to deal with the fact, that human creativity has to face the common opinion that art has to leave traces which can be studied by philologists, before it can be protected by laws. This was definitely not a problem of medieval artists who never thought about it, not even in their most blasphemous thoughts. In the age of internet, this point of view is definitely not helpful, when it comes to a trial.
The Max Planck Association which was once involved in the creation of the web, is still very engaged in funding an infrastructure which make cultural heritage available to everyone. Here you can find their official declaration of open access:
http://openaccess.mpg.de/286432/Berlin-Declaration
I would like here to point at other related discussions. There are as well institutions which ask for a lot of funds and promise in their project descriptions, that they will make it public. Over the years it has not been published yet (unlike DIAMM). You might not regard it as a damage to the public in the first place, when it seems to be a damage to the foundation—and more than anything else a damage to the reputation of the institution which did not the work it was paid for. We see that there is always a responsibility for everbody and it includes the responsibility concerning the rights to profit from cultural heritage, because it should be always owned by those, who once created it (I mean the manuscript, not the scan), and shared with those who allow open access on the declared terms of MP.
Let us not forget that this includes also the protection of cultural heritage (also protection against ambigious owners of copyrights who do not share the profit or who hide cultural heritage which belongs always to those who engage to save it for the public and for future generations or against regimes like that of Silvia Berlusconi in Italy or that of Putin in Russia which did so far a serious damage to cultural heritage of the past as well as to living traditions of their country). I quote here from a protocol of a talking circle “Threatened music, threatened communities” (published in the proceedings of a symposium of the ICTM Study Group "Applied Ethnomusicology", held in Ljubljana in 2008):
I hope that you agree, that there is something which we have to fight for. This is not simply the question of private ownership and making money.
Olivier Berten a dit :
But you haven't said anything on this contentious matter.
Please refer to Julia Craig-McFeely's statement above regarding the post processing images.
There you go again asserting public domain. Fair use places limits how much can be copied.
You haven't answered my question. That aside, as I scholar who gives credit where credit is due, I always defer to the expertise of a specialist in an area of music I am not well versed in.
Most, but not all. For an organisation that claims to act in the public interest, it needs also to be accountable to the public by responding to complaints, not banning them as users for doing so. Are you a regular use of their web site?
Jason Stoessel a dit :
I guess you didn't check by yourself, did you? Otherwise you would have read this:
(2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired under the 1956 Act—
(a) literary, dramatic or musical works in relation to which the period of 50 years mentioned in the proviso to section 2(3) of the 1956 Act (duration of copyright in works made available to the public after the death of the author) has begun to run;
(b) engravings in relation to which the period of 50 years mentioned in the proviso to section 3(4) of the 1956 Act (duration of copyright in works published after the death of the author) has begun to run;
(c) published photographs and photographs taken before 1st June 1957;
(d) published sound recordings and sound recordings made before 1st June 1957;
(e) published films and films falling within section 13(3)(a) of the 1956 Act (films registered under former enactments relating to registration of films).
http://www.legislation.gov.uk/ukpga/1988/48/schedule/1/paragraph/12
Since pretty much all the music from these books has been published long time ago, we are not concerned by the "musical works" (or "literary work" if there are words) but rather by the "artistic work" since we are talking about the scores themselves. The "artistic work" is defined as:
(1) In this Part “artistic work” means—(2) In this Part—
(b) any engraving, etching, lithograph, woodcut or similar work;
“photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;
“sculpture” includes a cast or model made for purposes of sculpture.
You could say the same about Fra Angelico, Albrecht Dürer, Nicolas de Verdun or any medieval artist...
I read that a few years ago and I see interesting technical notices, not much of creative ones... and even advices about not putting anything that you're not 100% sure it's in the score... But anyway, this concerns only the Digitally enhanced images you can find next to some raw pictures, http://www.diamm.ac.uk/jsp/AnnotationManager?imageKey=737 for instance.
As I told already, websites are protected under copyright under the same conditions as any other work. Public domain pictures in a book can be copied even if the book as it cannot be.
I don't have any extensive training in palaeography but I can still read some of these manuscript and they are very useful for me as a musician for helping answering questions about modern editions, or even to make my own modern editions. In this situation a pdf is much handier than the current DIAMM website.
The identity of the administrators and of most of the contributors is one click away from their username. I doubt you could contact as easily the board of Universal Editions as the team of IMSLP.
Since I have already responded to the matter of public domain in my earlier responses, I suggest a review of them will answer your questions. But I'm afraid Monsieur Berten it is not appropriate to ask a complete stranger about his private communications. But to repeat, whether the original is in public domain or not is not relevant to the question, especially in the UK where, although perpetual copyright ceased in 1988, I am informed that unpublished works currently remain protected until 2039. Whether medieval compositions constitute works is another very important question, especially from the perspective of a historian who understands that such concepts do not exist until very late in the middle ages. The law is scarcely able to answer this question. Likewise issues of the status of so-called cultural patrimony is also a vexed one when one regards the fact that many manuscripts belong to cultures that have passed out of existence long ago but were appropriated by more recent generations and cultures whose antecedents were not responsible for their creation.
With respect to creative processes in the post-production of DIAMM's images and the question of copyright, readers might like to consider http://www.diamm.ac.uk/publications/digital-restoration-workbook/.
Web sites and the materials they contain are protected under copyright in most jurisdictions. In a publication, one seeks permission from the owning institution to publish an image of one of their manuscripts. The copying of any part of a publication is subject to the fair use provisions of copyright. It is hard to see how the copying of DIAMM's image falls into fair use provisions.
The matter of delivery of research material is also an important one: DIAMM maintains an extensive database that permits the user to immediately discover much information about compositions in a manuscript, to search for specific information and provides research tools like annotation. Moreover, this information is sourced from experts in their field. A downloadable PDF provides no such "value adding": in fact it is only really useful to someone who already possesses a thorough knowledge of medieval music. In this sense, taking DIAMM's images deprives users without extensive training in palaeography and music of the very knowledge that the European Commission is seeking place in the hands of the public to increase productivity and creativity. Which best protects a culture's so-called patrimony best?
Transparency remains a question while the administrators and contributors to the infringing website obscure their identity and do not disclose their credentials, as does its laissez-faire approach to copyright which places the onus on the downloader. Many file-sharing ventures tried to plead the same.
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