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Canadian Public Domain Told To Cease and Desist

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Sunday October 21, 2007

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). 

Comments (26)add comment

Jean-Baptiste Soufron said:

actually there is a precedent
Actually, there is a precedent since I had the honour to help the canadian website "les classiques des sciences sociales" that was threatened by a famous French book publisher. In the end we concluded that the canadian website had the right to publish public domain work online, even when these works were not yet public domain in France.

Do not hesitate to contact me (google me) if you need further information.
October 21, 2007

WJM said:

...
Why did they buckle so quickly? Project Gutenberg produces e-text versions of books that are PD under US law and the pre-1923 rule, even though they are not uncommonly still copyrighted in the life+ universe.

Project Gutenberg Australia encountered a similar problem in reverse, buckled, then unbuckled.

The International Music Score Library Project needs some sound legal advice and a backbone. As The Onion headline once read, "Quirky 'Canada' has own government, laws". Giving into this legally unfounded international greymail is to cede our cultural sovereignty.
October 21, 2007

Mel Wilson said:

...
There's an explanatory letter from IMSLP at the web site
[ link ]

They "buckled" so quickly because the whole project was a college student, his spare time, and many volunteer contributors. Money and time to fight a corporation were not there. It was actually the second cease-and-desist order that stopped them.
October 21, 2007

WJM said:

...
Stop or we'll say stop again, in other words. Those other organizations are volunteer-driven, too.

Perhaps there are some good people out there who will be willing to smack down the smack-downers, pro-bono.
October 21, 2007

Dwight Williams said:

Sorry to read this...
I would certainly hope that talented, public-minded lawyers are able to ride to the rescue on this one!
October 21, 2007

Jose said:

Bertran
Gives a whole new meaning to public domain.
October 21, 2007

Frank Kokot said:

...
Herewith copy of email I sent Toronto law firm that sent the C&D letter:

I'm sure your company is getting a lot of nasty mail over this one. Deservedly so. There are a few times I'm not proud to be Canadian. This is one of them. The last time I felt this disgusted was when Diefenbaker canceled the Arrow. Sincerely; Frank Kokot Oshawa
October 21, 2007

Jon Noring said:

...
In the area of sound recordings, pre-1972 sound recordings recorded in the U.S. are NOT covered by U.S. Federal Copyright law (Title 17). Instead, they are covered by a myriad of State copyright laws and other legal protections. Furthermore, in New York, for example, there is no term limit to state copyright, as far as I now. Thus, the first commercial recordings made in the U.S., dating back to 1890, are technically still covered under NY copyright law, and of course it is our friends in Japan, Sony/BMG, who own the rights to these recordings, and pretty much 98% (a guesstimate) of all pre-WWII sound recordings. (According to Title 17, these sound recordings will revert to U.S. Federal copyright protection in 2065 -- who knows what term limits will exist then?)

The mind boggles as to the ramifications of this legal fact in light of this blog article.
October 21, 2007

a guest said:

Heather Morrison
There must be strategies to fight this kind of thing, aside from pro bono legal help, valuable and valued though this is.

If our government is entering into international agreements that make this scenario possible, do they have an obligation to fund legal defences on behalf of Canadians?

Or, could ordinary Canadians sue the publisher for taking away our rights to enjoy what is within our legal rights? A class action suit, perhaps? I'm no lawyer.

Heather Morrison
The Imaginary Journal of Poetic Economics
[ link ]
October 21, 2007

Hugh said:

http://librivox.org
thanks for posting about this ... we had some similar legal issues at librivox.org, pushed back and were left alone. i've contacted imslp ... hopefully our experience can offer some support.

The particular issue here, i think is the question of whether EU laws can apply in canada, which is an open question, but in our case we cribbed the following from gutenberg's legal documentation, which states:

"We have done exhaustive research over the years on this subject, and have not found any indication that the copyright laws of one country will have any force in any other country, even in cases of publishing materials on the Internet or the World Wide Web...

"Project Gutenberg has eBook servers only in the United States. [note: the same is the case for LibriVox.org audio files, which are hosted at archive.org and ibiblio.org]....

"We have had the heads of several major law libraries do research on this particular matter for us, and are confident we are in an exemplary position as per our research on this."

at one time i had a link to much of gutenberg's legal correspondence, but i can't seem to find it.


October 21, 2007

Gerhard Torges said:

...
I am disappointed by the quick takedown, too.

But on the other hand, and despite tha fact that it was hosted and run in Canada, IMSLP cannot deny their service was available worldwide. Thus, they have to obey the law in every country IMSLP can be accessed from. IP filters, as suggested by UE's attorneys, would be an appropriate way to do so.


Gerhard
October 21, 2007

Heather Morrison said:

...
If IP filters are the way to go, then it should be the country with the extended copyright laws that should take the responsibility for filtering out!

Then, when their citizens figure out that they have access to much less than everyone else in the world, they can take their own government to task and demand better laws!

Heather Morrison
The Imaginary Journal of Poetic Economics
[ link ]
October 21, 2007

Joshua Dunfield said:

...
"Thus, they [IMSLP] have to obey the law in every country IMSLP can be accessed from."

How on earth can one fall under another country's jurisdiction merely because one transmits data there? (And does that also apply to snail-mailed packages?)
October 21, 2007

WJM said:

...
If Universal Edition AG were right - they aren't, but let's play make-believe - that means that the term of copyright in EVERY country is life+100 years.

Why?

Because that's the term in Mexico.

It also means that you have to pay for the right to reproduce works in which the copyright has expired.

Why?

Because a number of countries have this stupid feature of their national copyright law called "domaine public payant".

If there are going to be international treaties on copyright rights, there really ought to be international treaties on copyright limits, exemptions, and obligations, including an international treaty to clamp down on this kind of abusive behaviour on self-styled copyright owners who think they can ride roughshod over national cultural sovereignty and the domestic copyright law of nations.

Forget about "balance" just in Canadian law. Canada should take a leadership role on insisting in such "balance" internationally, starting by holding the line on copyright term extension. If there is a minimum term by treaty, there also ought to be a maximum. That, and international standards for required penalties in cases of copyright overclaim and abuse.
October 21, 2007

Project Gutenberg Volunteer said:

...
The Project Gutenberg responses to copyright infringement claims can be found here:
[ link ]
October 21, 2007

Drew Wilson said:

Ugh...
I'm betting this culd open the floodgates to others making similar demands on any public domain website they can find. I can imagine the new slogan in the copyright debates being, "Yarrr! Let us raid and pillage the public domain before the copyright cops find out!"
October 22, 2007

Kevin said:

IP filters are not the way to go
Certainly IP filters would do the job, but this is like killing a fly with a shotgun. In any case, it likely wouldn't work as they are hoping.

First of all, IP filters would cut off access to the entire site, not just the offending material that is illegal to access in that country.

Secondly, I remember seeing that there are now "proxy" type servers on the internet which provide access to sites that you couldn't normally get access to. This defeats the purpose of an IP filter.

Where does one country's jurisdiction end and another's begin?
October 22, 2007

Howard Knopf said:

...
Terrific work, Michael...

I've posted some further analysis...

[ link ]

Howard
October 22, 2007

naive said:

copywrong
If the air was made of rock it wouldn’t be any space to grow. This is the ultimate example of copyright thickness. “Corporations without frontiers” are solidifying the air around them in order to keep their monopoly and power. It is the spirit of “conservative” minds. No space for progress. I wonder if finding the tougher common ground between international laws it means we should reintroduce the death penalty.
October 22, 2007

WJM said:

...
Do any of the works or composers which are alleged to have infringed Canadian copyright have names?
October 22, 2007

Jonathan Irons said:

music@universaledition.com
Universal Edition on the shutdown of www.imspl.org

Unfortunately, by deliberate misinformation the impression has been given that Universal Edition forced the shutdown of the IMSLP site. This is not the case.

Please read our statement here:
[ link ]
October 23, 2007

WJM said:

...
Universal Edition, which of the IMSLP works, in your estimation, infringed Canadian copyright? Please be as specific as possible.
October 23, 2007

lcrighton said:

...
re: Udate

The first letter, which included a list of works, has been posted to the imslp forum. The letter makes no mention of works infringing Canadian copyright: the stated issue is other countries with different rules.

[ link ]

"In Canada these composers are in public domain, but there are several countries providing copyright protection this might be the general protection of 70 years after the composerִs death, but also special rules"

They also asked imslp sign a statement which included "2. upon each violation of my undertaking under item 1. above, I explicitly agree to be obliged to pay in waiving the defence of continued offense (֓Fortsetzungszusammenhang) Ԗ to Universal Edition AG a contractual penalty, non-reducible by Court, in the amount of EUR 3,000 for each violation of the aforementioned undertaking. Further claims of Universal Edition AG for damages exceeding such contractual penalty remain unaffected."

[ link ]

October 24, 2007

Dwight Williams said:

What the--?
I wouldn't agree to these sorts of terms. I'm not a lawyer, though. Nor am I staring down the barrel of an legal "attack" that could be extended to target the Gutenberg Project down the line if this instance is allowed to stand.
October 24, 2007

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