1709 Blog: for all the copyright community

Saturday, 9 November 2013

Old Czech composers, current German MS owners and restrictions on use: can you help?

From the Concerto for Oboe and Bassoon in F major
by Antonín Reichenauer, who died in Prague in 1730
One of the 1709 Blog's readers has written to ask as follows:
"I am a musicologist and occasional performer of pre-1800 music. Copyright is seldom an issue in dealing with old musical manuscripts as the copyright protection (on the whole) has long since expired on such musical works. I understand that the owners of musical manuscripts, for example, maintain some rights on the reproduction of those documents in facsimile. I have been in contact with the music manuscript department at a well-known library and in terms of recordings, they couldn't find a reason that owning a music manuscript from the 18th century afforded the owner any copyright protection (at least under UK law) for an audio recording.

Here's my question: what is the legal status of the modern German owner of a musical manuscript that was composed by a Czech composer in the 1730s (without any kind of legal bequest from the composer to the owner)? The owner of this manuscript made a facsimile of that manuscript available to the public (in a public library in Germany) but with the explicit understanding that no audio recording would be made without the owner's permission. However, I don't see that the owner (despite demanding such a signature in order to get a photocopy) has a legal leg to stand on. If there is no copyright on the music and no physical reproduction has been made (facsimile or modern transcription), could the German owner conceivably sue someone in the UK for making an audio recording of this music?"
Readers' responses are very much welcome -- on the understanding, naturally, that they do not constitute legal advice.

6 comments:

Sylvie said...

The legal leg to stand on could be the following:
German copyright law says (§71 UrhG, available in English here: http://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html#p0446 )
"Posthumous works
(1) Anyone who has a previously unreleased work released legally for the first time after the expiry of the copyright or communicates it to the public shall have the exclusive right to exploit the work. The same shall apply to unreleased works which were never protected within the territory to which this Act applies, but whose author died more than 70 years previously. Articles 5 and 10 (1), as well as Articles 15 to 24, 26, 27, 44a to 63 and 88 shall apply mutatis mutandis.
(2) The right shall be transferrable.
(3) The right shall expire 25 years after the work was released or, if its first communication to the public was made prior to that date, 25 years thereafter. The time limit shall be calculated in accordance with Article 69."

Making an audio recording of the posthumous work would definitely be considered as an exploitation of the work.

anthony o'dwyer said...

Hi,

A similar anomaly came to light recently regarding unpublished Joycean text - see the following link for what the International James Joyce Foundation (English Department - Ohio State University) had to say about this issue and how it applied in multiple jurisdictions including the UK:

http://joycefoundation.osu.edu/joyce-copyright/fair-use-and-permissions/about-law/currently-unpublished

The final paragraph may also be of use.

A

Anonymous said...

Very useful comments. Firstly, if the alleged copyright infringement took place entirely in the UK, could the German owner pursue a case based on German law in a UK court? Second, what is meant by 'communicated to the public' in the German law quoted above? Reading the other link (relating to the Joyce case), would the fact that the manuscript has been publicly available for at least 50 years or more effect matters? The works in question were certainly reproduced in microfilm and made available in another public library no later than the late 60s. Fragments appeared in scholarly texts and inventories since the late 60s (or possibly earlier). Music manuscript 'experts' have made a distinction between the manuscript itself (that is, reproducing the image) and the intellectual material therein. I'm unclear on how the phrase 'the right exploit the works' might be applied. For example, it would seem that if someone owns an 18th-century copy of a Bach cantata that exists in other (even later) sources, they could hardly pursue a case for this sort of alleged infringement.

Peter said...

Rather than being a case of getting the 25 years of copyright for first publication, it sounds to me like this is a case of what Jason Mazzone has labeled "copyfraud." The restrictions on performances are not based on copyright but rather on the rights of the physical owner of the manuscript. The owner has made copies of the (probably) public domain work accessible, but only if users agree to the restrictions that the owner wishes to impose. It is no different than a museum placing restrictions on what you can do with the reproductions it provides.

So the legal issue is one of contract, not copyright. In principle, if you released an audio recording of the work, the physical owner could sue you for failure to abide by the contract to which you agreed when you were provided access to the work. The case might hinge on whether a binding agreement had actually been established.

Of course, if you can find a copy somewhere that has no access restrictions on it, you would be free to do whatever you wanted.

Anonymous said...

Thanks for the replies. I do have another copy. In fact, there are several others (though not all are accounted for). In the mid-twentieth century (possibly earlier) there were pen or pencil copies made in another country from undisclosed sources. The copies are similar, though not identical (though nothing like different notes). I still have photocopies of some or all of one of these sources, but it would be impossible for me to prove or disprove its origins. Could a judge decide that someone just made a copy of the oldest ones and claim it's a copy of some second, previously unknown source? I bought the loose sheets together with some printed volumes of music in a bookshop in eastern Europe—but I have only photocopies. My worry is that the owner of the autographs (who believe them to be unique) could try to sue me, arguing that the pen/pencil copies from the 20th century are not reliable enough sources. In short, it might look a bit fishy if I tell the owner that I have another source without being able to prove that my source is or isn't a copy of theirs. Under what circumstances would I be obliged to divulge my source? I could supply one, if necessary, but I'm not sure where the onus lies. Perhaps I will need some professional legal advice to avoid problems with the German law?

Andy J said...

As Peter has said, and I agree with him, this is largely matter of contract. If you have other material from which you can assemble a working score, then since you will not have used any of the information in the photocopy for which you had to give a signature, you have not defaulted on the implied contract. Unlike a copyright dispute, where it might be presumed that you had copied because you access to the version held in the German library, for the other party to be successful in an action for a breach of contract, they would need to prove that you could only have obtained the musical notation directly from the work they own.
Clearly if you did obtain the pencil copies from another source, even if ultimately they had been made from this one source, although not by you, then you would not be liable for a third party's actions which led to the creation of the pencil copies.