Open Access News

News from the open access movement

Sunday, October 21, 2007

More on the international race to the bottom

Michael Geist, Canadian Public Domain Told To Cease and Desist, Michael Geist's blog, October 21, 2007.  Excerpt:

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, a German 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.

Comment.  This is an important problem and the worst possible way to resolve it.  Here's how I commented (October 2004) on a similar case in which the heirs of Margaret Mitchell demanded that Project Gutenberg of Australia take down a copy of Gone with the Wind which was in the public domain under Australian law but not under US law:

One the one hand, it's true that users from the U.S. or any other country can download the book from the Australian site. On the other hand, if that were a reason for the Australian site to take down the book, then suddenly all countries in the world would have a term of copyright effectively equal to the longest term in force anywhere. Conversely, of course, if it were not, then all countries in the world would have a term of copyright effectively equal to the shortest in force anywhere. Since either resolution is likely to equalize copyright terms around the world, de facto if not de jure, this issue is much too important to depend on a lawyer's cease-and-desist letter to a cash-strapped non-profit. Project Gutenberg of Australia needs some serious legal and financial help.

In my newsletter for 11/16/01, I looked at the possibility that IP-tracking software could solve this problem without all countries on Earth having to harmonize their copyright rules.  But kudos to the Canadian Supreme Court for making that question moot and ruling (in effect) that the IMSLP needn't use IP-tracking software.  Now it's time for Canada to protect conduct that is lawful in Canada.

Update.  Michael Hart of Project Gutenberg has offered a most welcome rescue.  (Thanks to Glyn Moody.)  Excerpt:

Project Gutenberg has volunteered to keep as much of the IMSLP Project online as is legally possible, including a few of the items that were demanded to be withdrawn, as well as, when legal, to provide a backup of the entire site, for when the legalities have finally been worked out.

Update. Barbara Krasnoff has blogged a response from the German publisher, Universal Edition. In short: it only wanted IMSLP to remove the scores under German copyright and not to shut down the site.