Uploading non-PD scores to a server where they are PD

[Deinonychus]

can anyone please comment on the legality or otherwise of my scanning and submitting scores which are not PD here in the UK but are in Canada. I have several such scores but would like some guidance before proceeding

Scores include Sea Idylls by Walter Carroll (1869–1955) and several by Chaminade (1857-1954) that are not in the archive

Thanks

[daphnis]

I'm pretty sure the issue of legality arises not from scanning from your own collection, but from hosting, which would be on our end. I don't think this would be an issue at all so long as the scores scanned and submitted to IMSLP are in fact public domain in Canada.

[emeraldimp]

Well... I think there are two issues here: the issue of hosting (IMSLP's legal issue) and the issue of transferring (Deinonychus' - or other users' - legal issue). I think daphnis is correct that IMSLP would bear no liability, but I'm not so sure about Deinonychus.

But I am not a lawyer.

[Peter]

I've been worried about this too. I would be interested a lot in legal advice on this.

[ras1]

I've worried about this problem before, but I was told not to worry about it. I think the idea may have been something to do with the fact that there is nothing wrong with the scanning in itself, then for some reason you're allowed to give the scan to someone for whom it is PD. Correct me if I'm wrong.

[reinhold]

I can only speak for Austrian copyright law (Urheberrechtsgesetz): Any copying of (protected = 70y after death of the last co-author) music scores is prohibited, except by universities and schools for their students.

Unfortunately, scanning already constitutes copying, so simply scanning in a protected score -- even for only yourself -- is a copyright violation. For music scores there is no exception for your own or private use; copying them is always prohibited except for universities, schools and archives.

The other copyright violation happens when you upload the scanned score to the IMSLP, since that's also copying.

The open question then is: Can the use/copying/offering of an illegal copy made in Austria be legal in Canada?

There are some connected interesting unsolved (and much disputed) legal questions in Austria, where for recordings there are provisions for private copying, e.g. you can copy a song for own use. However, if the original is apparently an illegal copy, is your copy a legal copy? (i.e. does a legal copy require a legal source?) As I said, these questions are currently under heavy discussion in Austria, but are not decided on in any law suit.
In Germany, the copyright law was change recently to clarify that private copies (except of music scores) are legal, unless they are made from an apparently illegal source (or a source illegally offered for public download).

[Sebastian]

I'm not a lawyer, but it seems only logical to me that uploading copyrighted material (in the uploader's country) is illegal, no matter if it's PD in the recipient's country.

On the other hand, I suppose receiving and hosting the score would be legal for IMSLP, if the scores are PD in Canada, no matter if the scanning and uploading was legal or not. I guess only the person scanning and uploading could potentially be breaking the law.

Whether the scanning itself is illegal may depend on which country you're in. In Denmark, for instance, it is legal to back up music CDs, DVDs and computer games/software for your own use (as long as you have the original) but illegal to give, lend or sell the copy to anyone (and in order to legally give, lend or sell the original you must destroy all backups first). I don't know if these laws apply to sheet music as well. It may be legal to copy for your own use, but not to share them with others.

[Klausgraf]

There are 2 questions for uploaders:

1. Is it legal to scann protected scores and to upload them on a server in a PD country?

No, it's not legal in most countries.

2. Can I get trouble?

That depends. If Feldmahler gives the personal data of the uploader to publishers or "Staatsanwaltschaften" you can get it. If you can be identified with your nick you can get it.

If you want a minimal risk send scores to a friend in a PD country and let him upload them. IMSLP should recommend this generally to protect his contributors from Non-PD countries.

[reinhold]

2. Can I get trouble?

That depends. If Feldmahler gives the personal data of the uploader to publishers or "Staatsanwaltschaften" you can get it. If you can be identified with your nick you can get it.

If you want a minimal risk send scores to a friend in a PD country and let him upload them. IMSLP should recommend this generally to protect his contributors from Non-PD countries.

No, IMSLP should definitely not recommend this, as this might be construed as instigating copyright infringement in these countries (which is just as bad as the infringement itself). For this contributory infringement IMSLP might be liable in those countries, which is a very bad idea!

[Klausgraf]

Maybe "recommend" is too strong. But IMSLP should intensively inform its contributors about liability in such cases and the risks. This means to say "1+1=" but not to write 2.

[nikolas]

To the OP:

Why don't you find someone you trust in Canada and send him/her the physical scores (your own copies), have him/her scan it and upload it to IMSLP and then get your scores back?

I'm fairly sure you can lend a score which you bought, from a legal point of view and then get it back. If the other person happens to have more freedom in the copying issue, I can't really see the problem from a legal point of view! At least for the person who owns the scores and the person who scans them and uploads them.

Now for IMSLP, this issue, I believe has been resorted by checking the IP and deciding whether a work is in PD in the country the downloader is or not...

[Leonard Vertighel]

Now for IMSLP, this issue, I believe has been resorted by checking the IP and deciding whether a work is in PD in the country the downloader is or not...

Please stop spreading this rumor. IMSLP does not enforce the copyright laws of individual countries by means of IP geolocation or any other means. It's up to the user to respect the laws of his country.

Edit by Daphnis: Fixed misspelling

[Peter]

Now for IMSLP, this issue, I believe has been resorted by checking the IP and deciding whether a work is in PD in the country the downloader is or not...

It would be highly unlikely that we could check the copyright status for each publication for each of the 192 countries on earth, wouldn't it?

[Carolus]

Mapichleko obviously does not believe that there should be any such thing as a public domain. Despite the fact that the vast majority of items here have been printed more than a century ago, that's just not enough time for the poor publishers to wring every centime out of their copyrights - which already are so ridiculously long that a composer has to be dead 70 years (plus another 14 if the publisher and composer lived through the world wars) in Mapichleko's country. What Mapichleko neglects to mention here is that copyright is a legal monopoly (monopolies are illegal in most places) granted in exchange for the benefit of the work entering the public domain - free to everyone's use - after a limited time. What's the limit? Life plus 100? Life plus 500? Why not 5000 years - or eternity? I expect Mapichleko thinks there should be no limit whatsoever. He's basically wanting an unlimited monopoly for eternity, but would rather make a silly arguments about publishers being such incompetent business people that they cannot recoup their investments with a mere 100 years or so of legal monopoly. No sale, Mapichleko.

Edit by Choralia, December 10, 2012: the above post by Carolus was a reply to a couple of posts deleted by accident on October 12, 2010, when I tried to split this topic into two sub-topics. This is a snapshot of the posts that I inadvertently deleted:

posts_deleted_by_accident_20101012.gif (116.97 KiB) Viewed 48708 times

I apologize for the mistake.

[daphnis]

If I could "like" your response, Carolus, I would. Seconded.