Attribution and Use of Sources

[John Ruggero]

Does anyone know of a reliable source that explains the legalities regarding use and attribution of public domain online digitized sources in commercial publications? I am encountering a lot of confusing information on the subject.

For example, some online libraries have claimed control over the "use" of manuscripts and early editions of their digitized files of public domain music. Then I read that of a recent court case in which this was held to be a false claim. And the term "copyfraud" has been used for such claims.

And it is not clear to me what "use" of a source actually means. Does it mean the reprinting of the actual digital scan itself, or simply looking at the source in preparing a critical edition? For example, would consulting a manuscript and comparing it to the first edition constitute a kind of use that a library claims control over?

Also, I understand that IMSLP requests that it be cited as the source for public domain materials used in publications. Is that sufficient if the source of the IMSLP file actually resides at some other online location? And if not, must one request permission for use from this other location or at least cite it as the location?

[OCTO]

Once something enters the public domain and is showed upon us through the "benevolent grace" of a library or any other institution, it remains in the public domain for all eternity. While the manuscript itself is PD, their picture can be used as "non PD". You can take a photo of the Moon and only you have the right to use it. The Moon iteslf is, I guess, still in PD...

Henle can insert a mere hairpin into a Haydn sonata and proclaim it to be the illustrious "Dr. Hermann Schweinsteiger addition to the Urtext," all while insisting it is off-limits for reproduction. Clearly, the publishers are parched for any droplet of income they can squeeze out. Well, guess who is to blame for their situation? Yep, it's them.

[RMK]

Once something enters the public domain and is showed upon us through the "benevolent grace" of a library or any other institution, it remains in the public domain for all eternity
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Perhaps in Sweden, but not necessarily in the US. Remember that due to the GATT Treaty in 1992, quite of bit of previously PD music (mostly Russian) went back into copyright.

I'd be very careful about advising people from a country other than your own regarding Intellectual Property laws.

[John Ruggero]

Thanks, OCTO. So it is your impression that the content (not necessarily the image) of any public domain material that appears on the internet is available for commercial use. So for example, the autograph of a Beethoven work that resides at Beethoven-Haus may be consulted for the purposes of producing a new commercial edition without permission and without acknowledgment from Beethoven-Haus. Is that correct?

RMK, you are, of course, absolutely right about the complex state of IP law internationally. However, I am concerned not about public domain status per se, because there is no question about that for the music I am dealing with, but more about digital scans of pubic domain material that appear in online archives, and the likely hood of having legal issues if some library feels that it owns the scan and only allows one to consult the scan for commercial use if they grant permission or even require payment.

I think that the question may have been decided against such control by libraries, not only for the content but also the image, in court cases in the US, but being quite risk-averse, I would like confirmation.

[benwiggy]

In the days when you had to go to a library to consult the manuscript, it was at least "good manners" to write "grateful acknowledgment is made..." to the cathedral, university or whatever. That, and the requirement to ask permission, was probably contractual in the conditions of access.

In law, digital scans/photos of manuscripts are the property and copyright of whoever made the photo. E.g. the British Library owns copyright in the photos it supplies of its manuscripts. (The same is true for photos of paintings, like the Mona Lisa.) Such institutions usually want additional fees if you are going to reproduce the images wholesale in a publication. No commercial publisher would violate that, as it's a clear breach.

You will surely find some legal blurb on the "digital collections" pages of libraries' website, where they show images online, about the terms under which they release the images. This will vary from library to library.

However, if you "consult" the manuscript (or a photo of it) for your own edition, then there is no conceivable claim of copyright breach by any holder.

Many of the manuscripts on IMSLP are copies of scans made by the holding library. I certainly wouldn't acknowledge IMSLP for a digital image that can be accessed directly from the Berlin Staatsbibliothek, for example.

Increasingly, many libraries let you take your own photos of manuscripts; though they may put contractual restrictions on their use.

It's good scholarship to cite the sources used for your edition, with library and shelfmark. That in itself is an implicit acknowledgement...!

[John Ruggero]

Thank you so much, benwiggy, for that explanation. It was exactly what I was looking for.

[benwiggy]

It's probably worth mentioning that a lot of libraries will have received some sort of government funding for digital scanning programmes, which will make public access a condition. (EU cultural funding, particularly.)

We do live in an extraordinary age, where I can sit in my chair and browse through manuscripts from Vienna, Naples, Paris, London, etc. (In fact, as I type this, I have a set of 17th-century part books from Cambridge University displaying in another window....)

[John Ruggero]

Absolutely. The world's culture and knowledge is now at our fingertips.