Possible copyright infringement

[Skaf]

Hello,

I am facing a claim that my edition of Tuma's O magnum mysterium ( https://imslp.org/wiki/O_magnum_mysteri ... on%C3%ADn) ) violates the editio princeps rule of German copyright law (§ 71 UrhG). Apparently, there has been a printed edition in 2011. While I am not sure that this claim is valid (since copies of the work have circulated in the 18th century, and the work has definitely been previously performed), I would like to avoid legal dispute. Is it possible to delete/block this work?

kind regards
Wolfgang

[justforplaying]

In this case, the claim won't even work (as they claim on violation of editio princeps rule) if there's really published copies circulated at prior. (Performance doesn't count in Germany's law; that's for Canada) Would you mind to provide evidence of such published copies in 18th century exists?

[Skaf]

1) There is one copy (definitely not an autograph) that was used by the Hofmusikkapelle in Vienna (RISM 600139002). The catalogue of Tuma's works by Vogg (Franz Tuma als Instrumentalkomponist, Dissertation, University of Vienna, 1951) does not mention any other copy. However, Vogg notes that Abbey archives were not particularly well documented (and in several cases inaccessible) when he assembled the catalogue, and other works of Tuma are known to have circulated in several Abbeys.

2) Theodore M Klinka created a practical edition of the work in is dissertation "The choral music of Franz Ignaz Tuma with a practical edition of selected choral works" (University of Iowa, 1975, pp. 207–220). I would believe that this dissertation had to be printed and published for submission. (Klinka also mentions that his university purchased a microfilm copy of Tuma's manuscripts.)

[DBMiller]

The claim is absolutely invalid, and we won't delete the copy. For one, the 18th century copy counts as publication. See the German Motezuma case for a parallel. The 1975 copy is also published.

Further, performance DOES count under German law. The provision is:

Wer ein nicht erschienenes Werk nach Erlöschen des Urheberrechts erlaubterweise erstmals erscheinen läßt oder erstmals öffentlich wiedergibt, hat das ausschließliche Recht, das Werk zu verwerten. Das gleiche gilt für nicht erschienene Werke, die im Geltungsbereich dieses Gesetzes niemals geschützt waren, deren Urheber aber schon länger als siebzig Jahre tot ist. Die §§ 5 und 10 Abs. 1 sowie die §§ 15 bis 23, 26, 27, 44a bis 63 und 88 sind sinngemäß anzuwenden.

It would be incoherent to interpret a work which has been publicly performed as a "nicht erscheinenes Werk," since communicating it to the public (by performance) must cause it to lose this status.

Also, consider the EU directive being implemented here:

Any person who, after the expiry of copyright protection, for the first time lawfully publishes or lawfully communicates to the public a previously unpublished work, shall benefit from a protection equivalent to the economic rights of the author. The term of protection of such rights shall be 25 years from the time when the work was first lawfully published or lawfully communicated to the public.

In this case, "unpublished" must be taken to include "not lawfully communicated." Arguably the wording chosen is poorly written, but the meaning is clear.

In any case, copying IS publication. As I said, we definitely won't delete these files. We don't take down items due to spurious claims.

[Skaf]

Thank you for the explanations. I will try to settle the issue with the claimant.