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.