DIAMM and IMSLP

[Olivier]

I personally don't feel bullied at all. I feel the request to remove perfectly legal images -- for whatever non-legal reason -- is bullying.

From my personal point of view looking at the larger trend of things, I think projects organized with the strictures of DIAMM are not going to be able to sustain themselves in the long run due to marginalization. The older generation of scholars will happily give in to most conditions made by such libraries. Today's crop of younger scholars are not like that. They'll use what they can and what they can afford, and will ignore those institutions who place unreasonable strictures. (Example: Being unable to take a digital photo for one's private use is an unreasonable stricture in today's world.) So in the long run, those institutions using unreasonable restrictions are going to be the ones which will suffer in the future. It's the same story with publishers, a group who has already begun to change their ways.

At the risk of repeating what's already been said: legality is never the only thing driving a project or a community. The choice of the libraries to not let anybody photograph or even view some books is also perfectly legal. But I guess you would agree with me it's a good thing they don't do only "what's legal", but lot of them also do what they think is good for the common interest. And I think putting in jeopardy the work of hundreds of musicologist around the world is an ureasonable decision in todays situation, which is neither the one you dream about, neither the one some old librarian dream about, but rather a slow transition in between different states.

[CatherineMotuz]

I write as a user of both IMSLP and DIAMM, both of which are essential to me in my work as a performer and researcher in Early Music.

The "slippery slope" issue—i.e. if IMSLP yields to DIAMM in this case, won't it have to yield to many others as well?—is an issue about the sustainability of IMSLP's project. So let's take a look at it:

IMSLP's vast library is built mainly from "crowdsourcing," where users of all kinds of backgrounds upload content including works that have fallen out of copyright, their own editions, and the occasional facsimile. The gradual replacement of critical editions with crowd-sourced alternatives bothers some publishers and some scholars, but as high quality, even scholarly editions will continue to be made (by high-level amateurs, by graduate students, scholars and even professional editors), putting editions up on IMSLP is a sustainable practice.

IMSLP doesn't seem to realize that DIAMM cannot and never will be replaced by crowd-sourcing. They are professionals trained to handle 500-year old paper and bindings in order to photograph them, and no one without sufficient training is going to be granted the ability to do this. Maybe this seems undemocratic, well it is—it's undemocratic in the same way that most people aren't allowed to perform open-heart surgery. So while you can replace professional editors with the crowd, you cannot replace the people at DIAMM. To jeopardize DIAMM's ability to continue means that, for many libraries around the world, no one at all will be doing their work instead.

Any time you introduce an unsustainable practice, you embark on a "slippery slope"—so by this logic, IMSLP has started falling already. Please recognize that IMSLP's relationship with DIAMM is a very unique one indeed, which means that IMSLP administration is really highly unlikely to have to deal with issues similar to this from other fronts.

[kosboot]

The choice of the libraries to not let anybody photograph or even view some books is also perfectly legal.

I don't believe it is perfectly legal. It's a question of their policies which may or may not have any legal basis. If the item is public domain, there is no legal restriction to photographing it, whatever rules a library may place upon its use.

[AndrewHankinson]

That's assuming you can even see it to photograph it. All the rights in the world won't help you get past a locked door. If you try you'll quickly find that any reliance on arguments of public domain access will be trumped by violation of property rights.

[Carolus]

Olivier notes:

The choice of the libraries to not let anybody photograph or even view some books is also perfectly legal.

That is undoubtedly true of a private library which receives no public funding whatsoever. However, once you start receiving payment from public funds - collected via taxes, this equation starts to change.

[AndrewHankinson]

That is undoubtedly true of a private library which receives no public funding whatsoever. However, once you start receiving payment from public funds - collected via taxes, this equation starts to change.

No, it doesn't change anything. Have you ever tried to photograph a manuscript? Even a library like the British Library, a publicly-funded institution that is pretty open and progressive when it comes to digitization and public access, would tell you to get lost if you waltzed in there expecting to just be handed every manuscript you requested just so you could take pictures of it. They are legally capable of kicking you off the premises, and banning you from returning if you persist. All institutions are, public or private.

I mentioned earlier some of the challenges of location and access, but let's actually look at just a few of the types of libraries that DIAMM works with and see what kinds of institutions we're dealing with. Some are public, some are private, some are private but receive heritage money grants from their Government. All of them contain valuable works. (These are just a few that I've quickly researched).

British Library Manuscript Collections. Funded entirely by the UK Government. Pre-1500 MSS you need to order ahead of your visit. I have personally heard tales of people requesting a manuscript, and being told that it's on microfilm, so you have to settle for that. (If you've ever used microfilm, you'll understand what a challenge that is, and you thank your lucky stars for DIAMMs gorgeous photographs). You will likely have a staff member hanging over your shoulder while you consult things there. You're only allowed to photograph certain things without being kicked out.

Médiathèque d'Evreux (Bibliothèque Municipale), France.. Likely publicly funded (being a "Municipale Bibliotheque"); unlikely that you would ever gain access to actually see the MSS without a good reason. DIAMM has images of a MSS dating from the 13th Century.

Bodleian Library, Oxford University (publicly funded institution). Pretty good about digitizing. However, they have only digitized a small fraction of over 500,000 music items. If you want to consult pre-1900 works you need to use their staff-mediated service. Readers can only take photographs of certain items. DIAMM contains over 60 MSS from them.

Bibliothek des Benediktinerstifts, Admont, Austria (a small town in the Austrian alps). Founded in 1074. Open only during the summer, out of season on request. Houses 1,400 MSS, 70,000 works from 16th C - 20th C. Manuscripts and pre-16th C. books are kept in a "safe depot." No digitization efforts (yet) that I could see.

Schottenstift, Benediktiner-Abtei unserer Lieben Frau zu den Schotten, Austria. Founded before 1365, houses approximately 200,000 volumes, access is solely for research purposes. You can't even access a list of the MSS outside of the library, so you actually have to visit them to find out more. No publicly available digital images.

Stift Lambach Musikarchiv, Austria. Open only by appointment. Contains 700 MSS, just catalogued by RISM two years ago. Copies are made only for researchers with a defined purpose. DIAMM doesn't have them in their database, but there's undoubtedly some stuff that they would like.

Cathédrale Saint-Lambert (Liège), Belgium. Doesn't have a website, so I can't tell what they have. DIAMM has images from a MSS dated from 1388.

Eton College. Private institution with very deep pockets. Undergraduate and Postgraduate Students must provide a letter of introduction. Open by appointment Monday-Friday, 9.30am-1pm and 2pm-5pm. Houses more than 150,000 items. You must contact the Collections Administrator if you want any images of them, since they don't seem to offer access to them on their site. The Eton Choirbook is one of the most spectacular music MSS out there, and DIAMM is responsible for giving people access to it.

Herzog August Bibliothek, Germany. The library is open M-F, 9am - 5pm. The library publishes some images online with a CC-BY-SA license (non-commercial use). However, they have just 733 MSS digitized, out of 11,800. You must pay to order reproductions. DIAMM has several fragments of a 14th C. Manuscript from there.

The list goes on and on and on. You may not like it, but that's the way it is in most libraries that house manuscript collections. DIAMM works within their terms and does incredible, amazing things. It seems to me that you don't understand the context, and so you don't understand the consequences of your actions. Public access, now and in the future, to both private and public institutions, are threatened by the actions of IMSLP. The equation doesn't change just because you don't believe it's right.

[Melodia]

By the way, even though Dr Julia Craig-McFeely is obviously not well informed about copyright issues, I would hardly consider her message "bullying"...

I think you missed the point that some of her comments were deleted (i.e. only an admin can see them now).

[Olivier]

The choice of the libraries to not let anybody photograph or even view some books is also perfectly legal.

I don't believe it is perfectly legal. It's a question of their policies which may or may not have any legal basis. If the item is public domain, there is no legal restriction to photographing it, whatever rules a library may place upon its use.

There is no legal restriction in making pictures of these books available to the public. However copyright doesn't rule anything about the physical access to the objects and the rights to take pictures of them. It's a legal obligation of the libraries and museum to preserve public heritage. Please remember we're not talking just about music scores, but about centuries old artefacts. And that preservation involves access limitation.

[Olivier]

Olivier notes:

The choice of the libraries to not let anybody photograph or even view some books is also perfectly legal.

That is undoubtedly true of a private library which receives no public funding whatsoever. However, once you start receiving payment from public funds - collected via taxes, this equation starts to change.

Please bring legal sources on that topic, I'd be delighted to learn more about it.

[Papillon]

I am a musicologist who has benefited from IMSLP numerous times. I feel that the fact that Feduol broke DIAMM's user agreement is critical. The scans should be treated as stolen property and returned (deleted).

Is it possible that DIAMM's participating institutions actually do hold copyright on the digital images? I heard at a music library conference in Germany that in certain cases, institutions can claim copyright on digital images of items in the public domain. However, the image must go beyond everyday scanning. It must involve the use of a high level of expertise on the part of the person scanning or photographing ("Nur wenn Digitalisate unter Einsatz hoher fachlicher Expertise eines Scan-Operators oder eines Fachfotografen mit einer Digitalkamera (z.B. durch Einsatz einer besonderen Form der Beleuchtung) erstellt werden, kann ein urheberrechtlicher Leistungsschutz entstehen." (Hanns-Peter Frentz, bpk – Bildagentur für Kunst, Kultur und Geschichte, Berlin, quote from conference slides: http://www.aibm.info/wp-content/uploads ... isaten.pdf)). Those rights are then valid for 50 years.

I don't know if something similar exists in the UK, but I just wanted to throw the possibility out there. After looking at the image requirements from DIAMM's website http://www.diamm.ac.uk/about/technical- ... e-quality/, I could see the argument that a high degree of expertise was indeed employed in producing their images.

[Notenschreiber]

I would agree, that these images are protected in germany for 50 years. (Urheberrechtsgesetz, § 72 Lichtbilder). This is part of the so called "Leistungsschutz".
But i have no idea, if something like this exists for Canada or the US or GB.

[Olivier]

I think there's no point in questionning the copyright status of the pictures in this case since it would take a trial in order to find out. And I don't think DIAMM wants to spend that much money on this...

Let's take for granted IMSLP is in its right. But that doesn't mean it's good. Just like if you're driving on a highway, obeying the speed limit, and a kid appears in the middle of the road. You're fully in your right, the kid isn't. Are you going on? I wouldn't...

[edit] Just in case: I'm not comparing DIAMM to a kid it's just an illustration that legality is not always the best argument to take into account...

[AndrewHankinson]

imslp said:

This is also what makes our role as guardians of the public domain even more important.

The more I think about this statement, the more I think that this is a pretty awful statement to make. It's like you think you're alone in this fight.

You are not the guardians of the public domain. You are not even a public institution. You are a private corporation, registered to one individual with an army of volunteers helping you. You claim the copyright laws of one country, but require notices of infringement to be sent to a private address in another. As far as I can tell you depend on donations and Amazon referral income to keep the lights on and the servers running. Meanwhile, the libraries that you claim to want to drag into the 21st Century have been preserving as much "public domain" material as they can for future generations, sometimes for centuries. There are very real expenses that go into doing this, but you claim not to care about this because "the world has changed." You view them as getting in the way, rather than doing as much as they can to continue to fulfil their mission so that future generations can even just see these works. Digital images are no substitute for the real thing, believe me.

You are not even the first organization to care about public access to works over the Internet. The CPDL has existed since 1998. DIAMM has also existed since 1998. The ThemeFinder initiatives at Stanford have been going on for decades. The Acadia Early Music Archive has been going on for decades as well. These organizations didn't have the legal opinions of the Wikimedia foundation to build on, and yet they managed to create something great. You're standing on the shoulders of giants here.

Now, you may be the largest. And you have done amazing things in your own right. But really, that just makes it all the more imperative that you work with smaller initiatives to try and help them with your size and clout, rather than trying to railroad them into agreeing to unreasonable terms that affect their core mission just because their way of doing it and the restrictions they have to operate under doesn't quite jive with your own idea of how things should work.

So, I think this all comes down to Olivier's question, and I really would like someone from the IMSLP team to actually address it:

Is your goal here to help make as many scores available for public access, or is your goal to make these scores available through the IMSLP website?

[Olivier]

I would like to ask a question to the members of the staff of IMSLP: could you please explain what benefits are there for IMSLP and its users in keeping copies of the DIAMM pictures on the IMSLP servers?

[noqu]

I can somehow see good arguments on both sides and would like to come back to Notenschreiber's idea of a compromise, trying to find a point of view that could be acceptable for both parties. How about this:

• Both parties agree that the DIAMM items currently on IMSLP are in the public domain, and that IMSLP has no legal obligation to remove them.
• IMSLP appreciates that DIAMM's role as an intermediary between libraries (who frequently take an unrealistic approach to copyright protection) and musicologists (who would like to get access to rare manuscript) requires compromises that go far beyond the actual legal requirements of copyright.
• Because of this unique role of DIAMM as an intermediary, and in order to support the common goal of DIAMM and IMSLP, making public domain music available to many people, IMSLP agrees to voluntarily refrain from hosting DIAMM digitalizations in future (linking to them instead).
• This voluntary agreement can be revoked be IMSLP at any time, e.g. when it becomes apparent that it would no longer serve the common goals of IMSLP and DIAMM.

And personally I don't think that making a judgement call on this case (and documenting the honest and deep discussion here on the forum) creates a slippery slope for IMSLP. The difference between Universal Edition and this case here is absolutely clear for everybody reading this thread.

Greetings - noqu