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I recently typeset some scores by Erwin Schulhoff (d.1942 - so PD in Canada), as the edition I had dated from 1993 and was thus still in copyright pretty much everywhere. I (perhaps naïvely) assumed that there must have been another published score of an earlier date, but I was wrong.

I later saw that the very first publication of that particular score was actually in 1993.

As it is the first publication, it would be directly evident that I typeset the score based on a non-PD edition of the piece - and in fact, all published scores of the piece are non-PD everywhere. So, is my typeset still legal to distribute in Canada if I release it under a Creative Commons license, or is there a chance that the publishing company might say "no no no, this typeset was clearly based on our publication, which is still under copyright, and since you physically couldn't have typeset the piece from a PD score, your typeset is illegal"?

I've got some more scores in a similar state, and I just want to make sure before I invest time to typeset these too.

Your inkling is correct; this would not be legal since your source edition, as you pointed out, is currently under copyright. This is basically analogous to transcribing a new book into hand writing and either giving away or selling photocopies thereof.

But, say, I somehow had access to whatever source documents *they* used to produce their published edition, these documents being the composers' manuscripts in the case that the edition is the first publication of his works. The manuscripts are public domain (in Canada), since the composer died in 1942. The music itself would be public domain, so shouldn't this be legal, unless I'm photocopying the published score (or unless the published score has alterations to the manuscripts which I am copying too in my typesets)?

I'm not arguing back - I'm just trying to make sure of how it specifically work against me if I keep doing this, or in the cases I've already done this.

The issue is how long a term is established by posthumous publication. In Canada, it's 50 years from publication (except for composers dead over 50 years, where there are some exceptions - namely of a work was performed or recorded in the composer's lifetime). In the EU, there is the 25-year term of Editio Princeps if the composer has been gone more than 70 years. If it's still within the 70 year window after his death, it appears to be treated differently in different countries. If the Schulhoff work was never published until 1993, not even the manuscript is public domain in Canada - despite Schulhoff's death in 1942. In the USA, it's protected until 1/1/2048 as I recall.

In this particular case (with Schulhoff's Inventions), the work was performed during the composer's lifetime, but before the first publication. Is it still public domain in Canada?

My guess would be "no." A performance in the composer's lifetime would probably not serve to exempt the work from the 50 year rule, though multiple performances with collection of performance fees by a performing rights society might. Also, the fact that it was published in 1993 - the year his work entered public domain in Canada generally - makes it unlikely that the exemptions would apply. They are apparently only intended to apply to works of authors long dead like Bach and Mozart. It would at any rate still be protected in both the US and in the EU - even in the unlikely case it would be exempted from the 50 years rule for posthumous works in Canada.

Since it seems to have been concluded that it's under copyright worldwide, I'm just going to go ahead and delete it as I don't see any reason to leave it around for another 34 years until it becomes PD in Canada.

Carolus wrote:A performance in the composer's lifetime would probably not serve to exempt the work from the 50 year rule, though multiple performances with collection of performance fees by a performing rights society might. Also, the fact that it was published in 1993 - the year his work entered public domain in Canada generally - makes it unlikely that the exemptions would apply. They are apparently only intended to apply to works of authors long dead like Bach and Mozart. It would at any rate still be protected in both the US and in the EU - even in the unlikely case it would be exempted from the 50 years rule for posthumous works in Canada.

I can only speak for the situation in Germany and Austria (they also choose to implement some aspects of the EU directive differently, since the directive only specifies some key points and possibilities, but leaves the particular implementation to the member countries).

-) In Germany: Distinguishes mainly between works published ("erschienen") and non-published. "published" does not necessarily mean printed, but can also mean that several copyists at that time were allowed to produce copies. However, a simple performance does probably not publish a work. The law defines it as "A work is published, when -- with premission of the rights holder -- copies of the work have been made available to the public in sufficient number or have been circulated."
Editio princeps is possible for previously unpublished works in that sense. Of course an edition adding enough new stuff to count as a new work is granted full protection, and scholarly editions are also granted some protection, although they are protected for only 25 years, IIRC.

-) In Austria: The law distinguishes between works made public and those that are not (for the purpose of Editio princeps and for anonymous works). "Made public" is much more than publishing, so a published work in the German sense is always made public in the Austrian sense, but not necessarily the other way round. The law says "A work is made public, as soon as it has been made accessible -- with the permission of the rights holder -- to the public." This also includes a public performance (but not a closed performance). The work in discussion here was probably made public in the Austrian sense...
A work that is first published after copyright has expired, is only protected for 25 years if it has not been made public before (in the above sense)!
Scholarly editions do not get any particular protection in Austria. But many will of course contain enough new aspects to grant a new protection to the editor.