Why not CC?

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CharlotteK
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Joined: 28 Sep 2008 21:08

Why not CC?

Post by CharlotteK »

Hi all,

I'm new here --- came upon you because a group I am singing with was using CPDL editions. I am giving a presentation on Creative Commons, and thought CPDL is a great case in point of the usefulness of alternative copyright in the arts.

But I was left wondering: why doesn't CPDL just use the CC ShareAlike license? CPDL "allows users to download, print, copy and distribute a score freely. The only restriction is that, if any changes are made to a score or text, the subsequent modified version must still be released under the same license conditions." Isn't that CC ShareAlike?

Just wondering, founders and contributors, why the decision to use your own license?

Thanks!

- Charlotte
Cdalitz
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Re: Why not CC?

Post by Cdalitz »

I may be wrong, but I think that CC was not yet established when CPDL was started.

Other sites like Mutopia (http://www.mutopiaproject.org/) had also started with their own licenses. Mutopia has meanwhile switched to CC, but obviously CPDL has not yet done the transition. Nor does it seemed to be planned as the license drop down box on the "Add Work" HTML form of CPDL does not even offer an option for CC.

There are however actually some editions under the CC-BY-SA, e.g.
http://www.cpdl.org/wiki/index.php/Miss ... ph_Dalitz)
(a piece that incidentally might well meet the interests of your choir).

What do the maintainers of the "Add Work" webform think about adding CC BY-SA to the list of drop down options?
vaarky
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Re: Why not CC?

Post by vaarky »

We definitely should reevaluate CPDL's copyright terms, since it's probably been a long time since that was done. Whether that results in converting to a CC-like license, or just adding CC as one of several types available, remains to be determined. We recently identified a law firm to advise CPDL on copyright issues, and this is one of the things that should be discussed with them.

My thinking is that it's best to avoid adding new copyright categories in the meanwhile, since this initiative might result in categories being updated in the next couple of months. I'd rather avoid having to keep historical information around about an additional category that existed only briefly if that's what CPDL eventually defaults to. Would holding off a month or two and using existing categories in the meanwhile make sense?
Cdalitz
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Joined: 24 Apr 2007 14:42

Re: Why not CC?

Post by Cdalitz »

I must admit that I consider the issue CC versus CPDL license not to be of sufficient importance to be decided in a hurry. Actually this is almost irrelevant because modern editions of public domain music can only be copyrighted in very particular cases (e.g. when they are the result of a comparison of different sources and include a critical report, or when they have added significant creative (not simply editorial) content). I doubt that many CPDL editions qualify for copyright protection.

Concerning copyright, there are however two more important concerns IMO:
  • To ensure the copyright status of a public domain work, the source used for the edition must made public. I would suggest to make acknowledgement of sources mandatory for new contributions (the Mutopiaproject does this)
  • There should be found a way to prevent composers from (ab)using CPDL for posting their music which they have registered at a performance fee collecting society. This can lead to the effect that choirs using these editions have to pay hefty penalty fees for singing music from CPDL. Not exactly what one would expect from a Choral Public Domain Library.
As a solution for the second point, I would suggest to require that composers posting their own music must do this under some CC license, which must also be stated in the PDF score. Unfortunately, this would require a painful check of already hosted editions.
vaarky
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Re: Why not CC?

Post by vaarky »

You're raising some good questions, thanks. I am collecting questions to ask the copyright attorney so we can figure out which issues to prioritize. Right now the firm is doing a conflict-of-interest check on CPDL, so I estimate that it will be a couple of weeks before we can have a substantial meeting.

By the way, can you give examples of which performing rights organization those composers had registered their scores with? I'm familiar with ASCAP/BMI but would like to get familiar with others that may be out there, esp. since my familiarity with international issues is limited.
Cdalitz
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Joined: 24 Apr 2007 14:42

Re: Why not CC?

Post by Cdalitz »

I cannot point to a particular instance, but if I recall correctly, one poster in the old Forums (the post apparently has been lost in the upgrade to the new forums) asked how he could collect performance fees from music posted at CPDL and one replier suggested posting to CPDL as an economically attractive option for composers.

Thus I conclude that there probably is some music posted by composers who are member of the SUISA (Suiss), AKM (Austria) or GEMA (Germany) or similar. To figure this out is however only possible by asking these associations for individual composers (you have to make N times M inquires, where N is the number of performance right associations and M is the number of modern composers on CPDL) and it might be that obtaining the info can require a lot of insistance and patience (if you mange to get an answer at all).

What I find alarming is that many editions posted by modern composers bear a rigid copyright notice, which indicates that public performance is not freely allowed, and actually very few explicitly bear a notice that public performance is allowed. Another important point to remember is that members of a fee collection association have transfered all performance rights to the association and thus no longer have the right to allow choirs the performance of their works.

I do not think that this problem is entirely solvable in a WIKI based approach, because everybody can post what he pleases and write "All rights reserved" on his editions. Most people won't care and it is unlikely that someone who cares spots this. While I have no problems with "pay per play" editions in general, I am concerned that hosting or linking to such editions on CPDL is deceptive to the users.

A practical (though laborious) solution could be to establish a copyright policy (like CC BY-SA for music posted by composers) and ask all composers of already posted music whether they comply with this and whether they can confirm not to be in a performance fee collecting association.
vaarky
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Re: Why not CC?

Post by vaarky »

Thanks for the additional information. I'll add this to the list of copyright-related issues. The first copyright-related priority will probably be making sure we are taking the right steps to protect CPDL from liability for copyright infringing scores someone might post, but I agree that we need to clarify what copyright terms people posting scores are agreeing to for their scores. The lack of clarity can be problematic both in terms of inhibiting people posting new scores, and also making it easier for people to use CPDL in commercial ways that were not consistent with CPDL's goals, and is definitely important.
pml
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Re: Why not CC?

Post by pml »

Hi Vaarky,

I think your first priority is correct. It is especially difficult to verify that copyright information is correct for new typesets, unless the editor/contributor has explicit knowledge of what sources have been used to create the new edition. I have a feeling there are a number of editions (hopefully relatively few) which tacitly rely on editorial work by recent editors that has generally gone unacknowledged. Another angle particularly for vocal music is to be able to identify any residual copyright in the text and/or translations used in a composition.

As for my stance on the CPDL licence and the Creative Commons licences, my opinion has gradually been swayed (particularly when reading Lawrence Lessig's "Free Culture" recently) to the latter, principally because of the multiple, flexible options available with respect to provisions for sharing alike, creating derivative works, or specifying non-commercial use; as a result any new copyrights on my own editions will now be using one of the CC licences rather than the CPDL's (my set of Purcell scores have just been updated, using CC-BY-SA/3.0/Unported). I also suspect the CC licences have been given a lot more legal scrutiny than the CPDL licence has to date.

By the way, although I have not been very active on CPDL for about six months - my free time this year having been comprehensively swallowed by work, rehearsals, the odd holiday and other projects - I will try to keep an eye out on any copyright issues that crop up here. I was approved as a member of the copyright review team across at IMSLP before it's brief shut-down, and although I am not a lawyer, I am fairly well informed on a variety of issues having had to address them in making my own editions.

Regards, Philip
vaarky
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Re: Why not CC?

Post by vaarky »

We sure can use help, thanks. One of the things we'll need to put together (with attorney advice) is a set of guidelines or procedures for handling copyright issues, the scope of review CPDL is responsible for, etc.

Excellent point about CC having had more extensive legal review than CPDL's license.
pml
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Re: Why not CC?

Post by pml »

Hi Vaarky,

Yep. Even though the CPDL License is firmly based on the terms of the GPL, it is nonetheless a different licence, and I believe has yet to be tested, by the usual method! The CC licences appear to have had way more eyeballs focussed on them.

Looking back over some of the earlier posts in this thread, it appears I've not been completely blameless in the "not applying the right copyright" stakes when it comes to some of my own editions. I started publishing my work here seven years ago, when I was much less informed about copyright than I am now. I'm still not happy about the limits of my own knowledge either, but there is no way I would wish to pursue the law; I just hope that I know enough now, to avoid the law pursuing me.

I noticed one of my own compositions gauchely infringing on the territory CDalitz repudiated, that of the score that is "freely available to distribute and copy but not to perform". In this particular case, it was a vain attempt at asking prospective performers to obtain permission from me, and thus to find out if anyone else in the world was interested in performing the thing. After nearly three years, I'm somewhat disappointed to find the answer is the same as it was then: zero. So I have revoked the request for permission to perform from the vocal score or to record (on the Wiki only as I don't have time to amend the PDF). This particular VS will be reissued under one of the CC-by-nd (no derivatives) options, at which time it will retain the old date of publication, but the licence details will become the new one; I suppose anyone having obtained the earlier version would be entitled to abide by either set of conditions.

CDalitz also mentioned the types of copyright that modern re-typesets may be entitled (or not) to have, and this is a real can-full o'worms. Uploading anything to CPDL is an act of "publication". Although the "country of publication" for a file uploaded to CPDL would obviously appear to be the US, some jurisdictions may consider things differently for the contributor who is living in that particular country. This is not because of some physical reality, but because at the minute level of the law, the idea of what an "upload" or "publication" is will be interpreted differently under different legal systems.

To what extent CPDL in the US should have to worry about that, I would hesitate to answer. The IMSLP as you will know received a cease-and-desist (I might be tempted to say the words legal and extortion, but I won't) from Universal-Edition Vienna, who wished to seek judgement for €180,000 in the Austrian courts, which they would have followed up by having the ruling enforced in Canada: nasty! Hence IMSLP went off-line for nine months, and since having returned on firmer ground now has an extremely elegant system for determining and clearly tagging the copyright status of uploaded works. However it would be seven or eight circles of hell to implement here at CPDL, since nigh on 100% of our repertoire are re-typesets, and a significant proportion is not even hosted here. We can hope that CPDL isn't such an attractive or obvious target for a similar tactic by a litigious publisher (presumably of choral music, mainly).

Some countries deem a lesser form of protection to exist in the typesetting (i.e. the representation, not the actual content) with a much limited term of say 20 or 25 years; this is not exactly copyright, but rather proprietary use. Some countries have specific laws on scientific editions (urtext) that in practical effect differ very widely from the other example given, that of editions bearing new and significant creative input (e.g. the Hyperion Records case in the UK). It is also worth noting the (slightly unusual example of an) unpublished work by a long-deceased composer will have a variable copyright status owing to the intertwined nature of these considerations, as the longer the composer has been dead, the more likely there has been significant editorial input!

The final comment to make is a practical one. A judgement of copyright infringement against CPDL would be enforced in the US, and it would be useful for the lawyers to have a look at some relevant case law, with respect to Internet publishing copyright violations. My suspicion is that the existing precedents would be worth becoming acquainted with.

Best regards, Philip

PS For those of you who are aware of my contributing, moderating, and administrative rôles here, you may wish to click on either of the links below for my user or talk pages on the Wiki. The upshot is (and yes, I am procrastinating a bit now posting such a long screed here): I'm busy for the indefinite future... but you probably already knew that!
vaarky
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Re: Why not CC?

Post by vaarky »

I really appreciate your posting your thoughts--it helps us frame what questions we should be asking. I'm especially unfamiliar with the International differences and how they come into play. It's also useful to hear about your reasons for choosing the particular copyright permissions you granted for the various pieces and how your thinking has evolved.

By the way, the latest news is that we have cleared the conflict-of-interest check and should expect a letter of engagement for signature soon. I'm eager to get this moving.
Cdalitz
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Joined: 24 Apr 2007 14:42

Re: Why not CC?

Post by Cdalitz »

Many thanks Philip for the detailed and thoughtful post!

I fear the only way to ensure copyright compliance would be an moderation system, which requires new posts to be approved before making them available online. The problem is that copyright law is very unintuitive with respect to public domain works so that most people posting scores won't believe that their edition is a copyright infringement. Plus, it is in probably more cases an infringement not of copyright, but of laws against unfair competition (which forbid "ripping off" public domain editions for a time period of 50 years).

I think the most viable step would be to make stating the sources for all editions mandatory. Plus to set up a page with informations which sources may be used (copies or Facsimiles of original prints, Urtext and posthumous editions older than 50 years, non-Urtext editions with an editor being dead for more than 70 years and the edition being published before 1920, and of course new works with approval of the composer). I would also suggest to point to RISM, which has made getting hold of copies of the original prints before 1800 amazingly easy.

PS to Philip: On your music editions site, the links to the PDFs are stalled.
vaarky
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Re: Why not CC?

Post by vaarky »

An additional question is what legal safe harbors are available for organizations such as CPDL if we follow a published process for responding to copyright-related requests, so we do not have the obligation to police every score submitted if the person uploading it makes certain representations. Instituting a moderation system before scores are submitted would bring up all sorts of complications. This is yet another question for our attorneys...
CHGiffen
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Re: Why not CC?

Post by CHGiffen »

I think a moderation system for copyright status of newly submitted scores would put an undue layer of difficulty and delay in getting scores posted. We've had pretty good luck with the whole CPDL community patrolling score submissions and raising copyright issues ... it is much easier to respond to individually raised issues than it is to attempt to evaluate (before posting) every score that is submitted. I think we are better off coming up with and articulating a workable copyright policy.

Chuck
Charles H. Giffen
CPDL Board of Directors Chair
Admin at & Manager of ChoralWiki
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