Geist, Knopf and Universal Edition
p2pnet news | Music:- On Monday, I ran a post headed up Universal Edition forces IMSLP offline which kicked off with, “A small Canadian website offering sheet music mainly from dead composers has been forced offline.”
I learned about this from an email sent, presumably, by an IMSLP supporter and today followed it up with UE’s version of events.
Unbeknownst to me, respected Ottawa law professor Michael Geist had blogged on this and later, equally well respected Ottawa copyright lawyer Howard Knopf also wrote a column on the subject.
Below is Geist’s post and beneath it, Knopf’s.
Definitely stay tuned >>>
Canadian Public Domain Told To Cease and Desist
The International Music Score Library Project was a quiet Canadian success story. Using wiki technologies, it emerged over the past two years as a leading source of public domain music scores, hosting thousands of scores uploaded by a community of students, teachers, and others in the music community. The site was very careful about copyright – only those works in the public domain (as many readers will know, public domain in Canada is life of the author plus an additional 50 years) were hosted on Canadian servers and the site was responsive to complaints about possible infringements.
On Friday, the site was taken down. Universal Edition AG, an Austrian publisher, retained a Toronto law firm to send a cease and desist letter to the Canadian-based site claiming that the site was infringing the copyright of various composers.
It appears that the issue was not that posting the works in Canada infringed copyright but rather that some of the works were not yet in the public domain in Europe, where the copyright term runs for an additional 20 years at life of the author plus 70 years. As is so often the case, a labour of love for a large, non-profit community was wiped out with a single legal demand letter.
In this particular case, UE demanded that the site use IP addresses to filter out non-Canadian users, arguing that failing to do so infringes both European and Canadian copyright law. It is hard to see how this is true given that the Supreme Court of Canada has ruled that sites such as IMSLP are entitled to presume that they are being used in a lawful manner and therefore would not rise to the level of authorizing infringement. The site was operating lawfully in Canada and there is no positive obligation in the law to block out non-Canadians.
As for a European infringement, if UE is correct, then the public domain becomes an offline concept, since posting works online would immediately result in the longest single copyright term applying on a global basis. That can’t possibly be right. Canada has chosen a copyright term that complies with its international obligations and attempts to import longer terms – as is the case here – should not only be rejected but treated as copyright misuse.
Update: The lawyer for Universal Edition AG has contacted me to advise that some of the works on ISMLP allegedly infringed Canadian copyright as being within life of the author plus 50 years. It is not clear, however, whether UE actually provided the site owner with a list of those works (the posted letter certainly does not include any such list).
Michael Geist
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist[at]uottawa.ca and is on-line at www.michaelgeist.ca.]
>>>
Über-Reaching C&D letter from Universal Edition’s CDN Lawyer
Michael Geist has exposed a shocking – though not surprising given the kind of overreaching letters that some lawyers can write – example of a C&D letter that threatens legitimate use of the public domain in Canada. It strikes this blogger close to the heart because it involves classical music and some of my favourite composers. Unfortunately, the content on the International Music Score Library Project (IMSLP) site has already been taken down already – so we don’t know what it looked like.
A lawyer named Ken Clark at the Toronto firm of Aird and Berlis has demanded on behalf of Universal Edition AG (an über-important and highly respected classical music publisher) that this apparently research based totally non-commercial site that was run by a student site that apparently posted public domain music scores block out internet users from life + 70 countries, and do certain other impossible things. This might be possible if it were selling the scores, because credit card info and other geo-location tools could be deployed. But I understand that this was a low tech labour of love research based site – so apparently Universal’s demand is not technically possible. The letter also implausibly and impossibly demands that a filtering system be installed to prevent uploading any of Universal’s scores until the copyright has expired in Europe (where life + 70 applies).
More to the point, these demands are not justifiable. For starters:
1. What the student was doing was arguably entirely 100% legal. Canada has a life + 50 year term and many of us will fight very hard to keep it that way. This episode is a very good illustration of why it should remain that way.
2. If C&D letters like this catch on, Canada will have to accede to the highest (sic – lowest?) common denominator of mindless copyright extensions – which currently is that of Mexico. The latter has irrationally extended its copyright term to life + 100 years. Talk about being nice to the USA!
3. Canada has no “making available” provisions in its law – so the fact that someone out “there” in the jurisdictional sense in a life + 70 country can see this site doesn’t make it illegal in Canada.
4. If there is any illegal reproduction going on, it’s out “there” in Germany or some other life + 70 place and not “here” in Canada.
5. Absent any “real and substantial connection”, i.e. targeted activity directed to life + 70 countries, there is no basis in Canadian law for these claims. Justice Binnie has told us so in SOCAN v. CAIP.
6. Above all, the Aird and Berlis letter is absurdly overreaching. It lists several composers, some major and some minor, who are included in the publisher client Universal’s catalogue. These major ones include:
B. Bartok – died 1945
A. Berg – died 1935
L. Janacek – died 1948
G. Mahler – died 1911
A. Schoenberg – died 1951
7. Note Mahler – who died in 1911 and Berg who died in 1935. That’s more than life + 70.
8. The others mentioned above are all PD in Canada.
9. Judge Richard Posner – whose influence cannot be overstated – has a suggestion for those that engage in “overclaiming” copyright rights that they don’t have – or misuse their rights too much – which is that of forfeiture.
10. That’s not a bad idea in a case like this. It might stop such overreaching C&D letters that are but the tip of the iceberg Canada could collide with if Canada follows the wishes of CRIA and Ambassador Wilkins on copyright revision.
11. Michael is right about the applicability of the CCH v LSUC case – the student is entitled to presume that the resource will be used legally, and in most countries in the world life + 50 is still the law.
12. This is all about cultural sovereignty.
This is a big issue for the student who started all of this and it’s understandable that he has retreated. He can’t fight this alone.
If this C&D letter is answered and the issue is fought – and it should be – I hope that various organizations such as CAUT will support the cause. Otherwise, Canadian professors won’t be able to post anything about James Joyce – or countless other creators who are still are in copyright somewhere and have litigious representatives.
And projects like Project Gutenberg could be threatened as well.
Come to think about it, if Access Copyright really believes in the importance of the public domain, as it claims, here’s a chance for it to demonstrate that commitment. BTW, where is that project announced a year and a half ago – or is it vapour ware?
Somebody should host this site, so the student behind it isn’t exposed. It’s sounds like it would be a good resource for young and old musicologists alike.
Howard Knopf – Excess Copyright
[Knopf is an Ottawa-based copyright lawyer who's been lead counsel on legal challenges both at the Copyright Board and in the Courts against the excesses of the music industry establishment. He's regularly quoted in the mainstream media and acted against the CRIA in the file sharing litigation, and continues to act against the CPCC, in which the CRIA is still a major stakeholder, on the levy front.]
Jon Newton – p2pnet
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