Dr. Howell,
I know that Kim did not mention a "graphical copyright", and in
introducing the concept to the discussion I failed to use the proper
term for the concept I meant, which is "typographical copyright". Many
jurisdictions, including the UK, where the company is domiciled which is
claiming infringement of copyright, make provision for this concept,
wherein the actual layout of content on a printed page can be
copyrighted, in their copyright law (cf.
<http://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law>,
particularly paragraph 3 item v, and paragraph 6 item iv), but the US
does not recognize the concept of typographical copyright, whether the
copyright subsists in other countries or not. Your assertion
a lawful copyright in ANY country signatory to the applicable
international treaties, it is under copyright in ALL such countries,
including the U.S.
does not seem to be accurate, according
<http://en.wikipedia.org/wiki/Rule_of_the_shorter_term#Situation_in_the_United_States>,
part of which quotes 17 USC:
/No right or interest in a work eligible for protection under this
title may be claimed by virtue of, or in reliance upon; the
provisions of the Berne Convention, or the adherence of the United
States thereto. Any rights in a work eligible for protection under
this title that derive from this title, other Federal or State
statutes, or the common law, shall not be expanded or reduced by
virtue of, or in reliance upon, the provisions of the Berne
Convention, or the adherence of the United States thereto./ -- 17
USC 104(c)
<http://en.wikisource.org/wiki/United_States_Code/Title_17/Chapter_1/Section_104>
Under the relevant provisions of 17 USC, my understanding agrees with
yours that a piece of music in the public domain cannot be
re-copyrighted; however, I understand that the efforts an editor applies
to a work otherwise in the public comain in the US including, but not
limited to, correcting mistakes, adding performance and interpretive
instructions, adding underlay missing or incorrectly placed in the
original, constitutes "original work of authorship" and is eligible for
protection, even though the music itself to which the editorial content
is applied is in the public domain. The issue of what constitutes
original authorship is not, as far as I can tell, completely settled. I
tend to doubt that merely changing clefs, key signatures, or durations
(which seems to be the only basis for claim of copyright in some
"editions" I have seen) would be found to be sufficiently original to
earn a claim of copyright. I suspect that we would both agree that works
by Charpentier, who died 305 years ago, are in the public domain in and
of themselves, so the validigy of the claim of copyright on the edition
under discussion would depend upon the amount of editorial content
involved in the edition. I don't have any information on how much
original authorship there is in the first page of the edition in question.
Finally, I think my attitude does largely coincide with the attitudes of
the administrators at CPDL. That attitude that is that any score hosted
on the CPDL website which is found, upon investigation, to infringe
copyright, is removed from CPDL. [NB: besides hosting scores directly,
CPDL provides links to scores on other sites not under its control, and
cannot remove scores on such sites]. But my attitude is also informed by
the personal experience that a claim of infringement by a publisher is
not ipso facto proof of infringement. I think most of the administrators
of CPDL will agree that whether the specific score in question is
infringing or not, that it should, and will be removed. Copyright in the
US is an area where my view of morality and legality do not coincide
nearly as closely as in some other areas; I think what the contributor
of the page did is immoral, even if it were to be found that it does not
violate copyright provisions, and is therefore legal, and I expect that
the CPDL administrators will agree with that point of view as well.
ns
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