The ACTA Internet Chapter: Putting Pieces Together
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Music Publisher's Takedown Strikes The Wrong Chord |
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Tuesday October 30, 2007
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My weekly law and technology column (Toronto Star version, Tyee version, homepage version, BBC version) focuses on the recent battle over the IMSLP. In February 2006, a part-time Canadian music student established a modest, non-commercial website that used collaborative wiki tools, such as those used by Wikipedia, to create an online library of public domain musical scores. Within a matter of months, the International Music Score Library Project (IMSLP) featured over 1,000 musical scores for which the copyright had expired in Canada. Nineteen months later - without any funding, sponsorship or promotion - the site had become the largest public domain music score library on the Internet, generating a million hits per day, featuring over 15,000 scores by over 1,000 composers, and adding 2,000 new scores each month. Eleven days ago, the IMSLP disappeared from the Internet. Universal Edition, an Austrian music publisher, retained a Toronto law firm to demand that the site block European users from accessing certain works and from adding new scores for which the copyright had not expired in Europe. The company noted that while the music scores entered the public domain in Canada fifty years after a composer’s death, Europe's copyright term is twenty years longer. The legal demand led to many sleepless nights as the student struggled with the prospect of liability for activity that is perfectly lawful in Canada. The site had been very careful about copyright compliance, establishing a review system by experienced administrators who would only post new music scores that were clearly in the Canadian public domain. Notwithstanding those efforts, on October 19th, the law firm's stated deadline, the student took the world's best public domain music scores site offline. While the site may resurface - at least one volunteer group has offered to host it - the case places the spotlight on the compliance challenges for Canadian websites facing competing legal requirements. There is little doubt that the site was compliant with Canadian law. Not only is there no obligation to block non-Canadian visitors, but 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. The site would therefore not be subject to claims that it authorized infringement. Further, while there have been some suggestions that the site also hosted works that were not in the Canadian public domain, Universal Edition never bothered to provide the IMSLP with a complete list of allegedly infringing works. Interestingly, this is not the first time that a Canadian website has faced pressure from a European publisher over conflicting public domain rules. Several years ago, Jean-Marie Tremblay, a Quebec professor, established a website that contained hundreds of electronic versions of French language public domain sociology books. A French publisher, the Presses Universitaires de France, threatened to sue on the basis that the site was accessible in France but that some of the books were still subject to copyright there. Tremblay fought back and the site remains online to this day. Although IMSLP is on safe ground under Canadian law, the European perspective on the issue is more complicated. There is no question that some of the site's music scores would infringe European copyright law if sold or distributed in Europe. However, the IMSLP had no real or substantial connection - the defining standard for jurisdiction - with Europe. Indeed, if Universal Edition were to file a lawsuit in Austria, it is entirely possible that the Austrian court would dismiss it on the grounds that it cannot assert jurisdiction over the Canadian-based site (and even if it did assert jurisdiction, it is unlikely that a Canadian court would uphold the judgment). This case is enormously important from a public domain perspective. If Universal Edition is correct, then the public domain becomes an offline concept, since posting works online would immediately result in the longest copyright term applying on a global basis. Moreover, there are even broader implications for online businesses. According to Universal Edition, businesses must comply both with their local laws and with the requirements of any other jurisdiction where their site is accessible - in other words, the laws of virtually every country on earth. It is safe to say that e-commerce would grind to a halt under that standard since few organizations can realistically comply with hundreds of foreign laws. Comments (10)
Greg Yarrow
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... Hi Michael, Tank you for bringing this issue to our (public)perception. Prior to your column I had never even heard of IMSLD, and now I will not have an opportunity to experience it. In my late fifties. I'm trying to learn music (especially compostion)at last. I gave up on lessons as kid and my mother's admonition that "Someday you'll regret it." has come too true. What are the chances that IMSLD will be revived? With thanks again. Greg Y. |
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... Yet one more demonstration of the impact of corporations dictating a country's culture. In this case, a corporation feels compelled to impact on the entire collective global governments with one takedown notice. Wonder why there aren't 180 (or more) governments crying foul? Apparently, there's global consensus amongst governments that all media needs to be centralized, consolidated, and out of the hands of the citizens. Is it that obvious? |
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... How does Project Gutenberg ([ link ]) get away with it? They post a notice "If you don't live in the United States, please check the copyright laws of your country before downloading or redistributing a book." They've been around for years outside of the most litigious societies in the world. So far, so good. Since Canada is bending-not quite bowing-in the same direction, I see no reason that this approach couldn't be effective. |
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Not just e-commerce Under a standard like that, I'd suspect that mail order businesses and some exports would also be affected. Sadly, a precedent may have been set in the US when they passed laws on Internet gaming. One of them was used to arrest the co-founders of Neteller PLC. |
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Liberate Media Many thanks for such an interesting article. The problem as I see it is that the national laws governing copyright are not fit for purpose in the internet age. It is obscene to expect websites like the IMSLP to adhere to every copyright law on earth. The only viable solution that I can see is that there needs to be one global copyright law that governs the distribution of all copyrighted material. Something useful for the UN to do, maybe? |
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Out of line I don't understand why IMSLP didn't just take off those scores by the composters in question (Universal Edition is naming only a few). The composers that are under copyright protection according to the 70 year term represent only a minor percentage of the content there. In my opinion the copyright protection should be respected. Don't forget that this protection is the economic basis for the composers to live on their music. You might say that dead composers don't profit on that, but that's not true. Publishers give the composers money for the right to exploit their compositions for a certain time. If the copyright protection would expire right after death, works by elder composers would be near to worthless. I totally support the IMSLD project and think it's wonderful that the "public domain" music is made really available to the public. To drop the project because of a few composers (like Schnberg!) is completely out of line. |
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Universal Edition is the one out of line Martin- The IMSLP is a nonprofit site run by a student and volunteer moderators, they don't have the time and manpower to sort through everything already on the site to appease Universal Edition- "Universal Edition never bothered to provide the IMSLP with a complete list of allegedly infringing works." As long as the IMSLP is in Canada on Canadian hosting, it should be immune to French law (should this go to the legal system). They don't have the time and money to sort this out right now however, that is why the site was taken down. |
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... If Universal Edition get their way on this issue, does this not mean that every website and ecommerce store would have to comply with all international law, not only copyright? |
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... Interesting. If there's justification in a demand to block something from one country that is illegal in another country, where does that leave the porn industry? With millions being made by legitimate companies selling content that's legal, in their own country, to people in countries where it's not, what's to stop governments utilise similar pressures? |
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... So if Universal Edition had its way then all websites would have to comply with all countries laws, this would include Islamic Sharia law which would pretty much close down most of the internet. Then there are the laws of contries like China which ban access to large tracts of the internet. I suspect even this website would be banned. |
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