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
Jason Stoessel a dit :
Jason Stoessel a dit :
There are rights of ownership and rights relating the curation of cultural assets. But again, these are not relevant to the question.
Vous confondez propriété matérielle et propriété intellectuelle. La propriété matérielle n'intervient pas dans la définition du droit d'auteur. Par conséquent, le contenu des manuscrits est bien dans le domaine public, et cette question est donc parfaitement pertinente.
The recommendations of the European Commission cited above relate to public domain. Since I have already shown that this is not relevant to the issue, this point is moot.
Exactement, la Recommandation concerne le domaine public, je suis ravi de vous voir l'écrire. Il ne vous reste plus qu'à comprendre que le contenu des manuscrits et toute image faite de ces contenus est également du domaine public.
This is nonsense. Libraries are able to charge for a service. And ignorance is not a defence.
Vous avez la critique gratuite plus affutée que la propension à fournir des sources.
L'exact contraire est écrit noir sur blanc dans les références que j'ai citées. Les bibliothèques facturent des frais techniques de reproduction, et ne peuvent en aucun cas vendre le contenu de manuscrits du domaine public pour une utilisation non-commerciale.
Regarding Corel vs Bridgman, which is the legal ruling cited by Olivier Berten from Wikipedia:
a) this only applies in the USA;
b) the documents reproduced were NOT, and remain NOT in the public domain;
c) the images are not slavish or exact reproductions of the original (they include colour patches, parts of the surrounding environment, and occasionally other things used to lay the pages flat);
Corel vs Bridgman does not therefore apply to the DIAMM images reproduced on IMSLP.
Jason Stoessel a dit :
Could you provide any legal source backing that affirmation?
Jacques Meegens a dit :
There are rights of ownership and rights relating the curation of cultural assets. But again, these are not relevant to the question.
The recommendations of the European Commission cited above relate to public domain. Since I have already shown that this is not relevant to the issue, this point is moot.
This is nonsense. Libraries are able to charge for a service. And ignorance is not a defence.
Fiona McAlpine wrote:
It's not even about money, since as Julia wrote many libraries also provide their images free. It's about exclusivity, about privileges, which is even more insidious than money questions...
Jason Stoessel wrote:
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.
Le droit seul fait la différence entre une action justifiée et une chasse aux sorcières. C'est le coeur du problème, bien au contraire.
Les grandes idées et les bons sentiments n'ont pas leur place si les fondements légaux ne sont pas clairs.
1. The copyright of the manuscript is a non-issue. All relevant manuscripts are technically out of copyright, but they were never copyrighted for obvious reasons. This does raise some interesting hypothetical questions about what rights might have been originally asserted by the owners of manuscripts - they were certainly precious and passed around in private circles. But this discussion relates to images of manuscripts.
2. The copyright of images is a key question, and under UK copyright law it seems that as an online material they are copyright. All images were produced within the last 70 years, the timeframe that governs copyright on literary works. As I state above, I understand that online material including images are considered literary works under UK copyright law.
3. Library's are not charitable organisations, though many of them are very generous. They have a right like any enterprise to ask for recompense for the use of their property, even if sustained by public funds. Conservation and the secure storage of manuscripts is expensive.
1. Nous sommes donc d'accord pour dire que les sources elles-mêmes sont totalement libre de droits.
2. La question est hors de propos, DIAMM précise qu'il ne détient aucun droit sur les images : "The images are not owned by DIAMM", "The Owner warrants that it is the sole owner of the Copyright in The Collection". En toute logique, si les bibliothèques restent propriétaires des images, c'est donc le droit du pays de chaque bibliothèque qui s'applique - en l'occurence, pour toute bibliothèque d'un pays membre de l'Union Européenne, les Recommandations de la Commission Européenne.
3. Justement non, les bibliothèques n'ont pas ce droit. Si certaines bibliothèques sont ambiguës sur la question du droit d'auteur et que DIAMM s'en accommode, c'est la seule responsabilité de DIAMM. Et DIAMM n'a pas à nous demander de cautionner des arrangements dont nous ne savons rien et qui sont en apparence contradictoires avec les textes règlementaires.
Although I have already spent too much time today on this thread, a few brief comments before I take leave for the rest of the week.
1. The copyright of the manuscript is a non-issue. All relevant manuscripts are technically out of copyright, but they were never copyrighted for obvious reasons. This does raise some interesting hypothetical questions about what rights might have been originally asserted by the owners of manuscripts - they were certainly precious and passed around in private circles. But this discussion relates to images of manuscripts.
2. The copyright of images is a key question, and under UK copyright law it seems that as an online material they are copyright. All images were produced within the last 70 years, the timeframe that governs copyright on literary works. As I state above, I understand that online material including images are considered literary works under UK copyright law.
3. Library's are not charitable organisations, though many of them are very generous. They have a right like any enterprise to ask for recompense for the use of their property, even if sustained by public funds. Conservation and the secure storage of manuscripts is expensive.
JS
This is a difficult question. On the one hand, I'm totally behind Julia: it is a serious breach of trust, and the errant user ought not to have contravened the condtions of use of DIAMM images, and hacked the site in the way that he did. We are all so grateful to have access to images that we might otherwise never be able to visit, and the site is a huge use to scholarship. So, whatever the libraries say, and acknowledging the delicacies of negotatiating with them, we have to be behind them.
On the other hand, the point of copyright was some sort of return for creators for their intellectual property. These creators are long gone. The public domain arguments that have been advanced are probably trying to meet this point, but haven't made it clear. I'd have been happy to keep Mozart's children in some sort of comfort, or school fees, or whatever.
I'll leave out private owners from what I'm about to say.
But why does a library, which is a publicly-funded institution, have a right to insist on copyright, in the sense in which I have described it? That its materials are precious, need to be protected from rough usage, and need to be kept from being fingered by tourists going "ooh", is obvious. As was said above, ms. materials are not publicly accessible materials because the public aren't allowed access to them, for very sensible reasons. We all have to provide our bona fides when we want to examine a manuscript. These cautions do not apply to the online images of a manuscript. In a sense, online images of a ms. protect the library's material good (as the BN discovered many years back, with black & white microfilms even when you were there).
But a library which houses a medieval manuscript is not distributing income to a composer, or to his family.
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