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
Mike Beauvois a dit :
True that ownership of an artwork does not grant copyright, but ownership and rights of access determine whether it is in public domain. Even if a work is out of copyright, the Bridgeman vs. Corel case implies that it must be in the public domain for *reproductions* of it to be also "out of copyright". But your comments have hit on a key issue: with respect to DIAMM, the owner of a manuscript not in the public domain but nevertheless out of copyright has provided access to make reproductions of its property on strict conditions that are encapsulated in the DIAMM user agreement which explicitly forbids further reproduction.
Finally as a point of clarification regarding the chief point of disagreement: in the UK, digital materials including images are regarded as literary works and thus subject to copyright. DIAMM images are copyrighted.
Whoever owns an artwork and the way to access the actual object has no relation with is copyright/author right status. Renaissance manuscripts are in the public domain, whether you can access them easily or not at all. You can't oblige the owner of an artwork to make a copy of it but if the artwork (or a copy) is available, you can't forbid any other copy.
Mike Beauvois a dit :
The best thing might also be to educate libraries and/or museums by reminding them they don't have any copyright or author right on public domain works. And to make them realize they don't loose anything by letting knowledge spread. I know that's not a practical answer but it might be more fruitful on the long term...
I understand efforts are being made, but the more pressure people can exert on IMSLP to ensure that images from DIAMM and other digitisation projects are taken down immediately the better.
Copyright is an important issue here since it provides one mechanism for assuring participating libraries that their rights and grant privileges are respected and protected.
In my humble estimation, the (in)famous Bridgeman Art Library vs. Corel Corp judgement is not relevant since it pertains to the public domain - see Julia's point above. Simply works whose copyright has expired that are in private ownership or not for public use are NOT in the public domain. Most manuscripts fall into either of those categories: I need to apply for permission from the director or librarian to see most manuscripts as a specialist: they are certainly not freely available to the public like the works (not manuscripts!) of Vergil, Dante, or Shakespeare.
You know, you can haggle all you want over copyright definitions, European vs US law etc ad nauseum,
but you're all missing the point - the participating libraries are getting cold feet due to what's happened,
and that's not a good thing.
The best thing we can do, as far as I can see, is exercise some damage limitation and get the DIAMM images
off IMSLP ASAP.
Je voudrais effectivement qu'on me montre le texte de loi où il est écrit que les manuscrits et les numérisations de manuscrits sont soumis à des droits d'auteur.
La Commission Européenne dit le contraire, la loi française est en accord avec la Commission (loi n°78-753 du 17 juillet 1978), comme sans aucun doute tous les autres membres de l'Union.
La seule question valable est celle de la propriété matérielle des numérisations, mais une fois de plus, la question ne se pose pas pour une utilisation non-commerciale.
Well... it seems at least american courts wouldn't agree with you... I don't know about the british ones...
The court ruled that exact or "slavish" reproductions of two-dimensional works such as paintings and photographs that were already in the public domain could not be considered original enough for protection under U.S. law, "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original"
http://en.wikipedia.org/wiki/Threshold_of_originality#Reproductions...
That said, I completely agree with the fact that the publishing of DIAMM's work by somebody else is ethically questionnable (and maybe legally, if the agreement on registering qualifies as valid contract) even though DIAMM is clearly quoted as the source on IMSLP. But these are 2 very different questions.
I'm afraid you are incorrect on both counts. A photograph is original since it is a singular work of authorship, and in the case of a book, the copyright already rests with the publisher and/or photographer. By taking a photo of a book, you are bound by the copyright that governs it. As I think Julia would confirm, preparing images for DIAMM requires considerable specialist technical skill in their photographing and in the post-production preparation of images.
A faithful photographic copy of a 2D work doesn't have the required originality to attract any new copyright. You can't copyright a photocopy of a painting or a book, be it a very good color copy.
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