Almost two weeks ago the International Music Score Library Project (IMSLP), a volunteer-run wiki administered and housed in Edmonton, received a takedown notice from Aird & Berlis LLP acting for Universal Edition AG, the publisher of works by Bartok, Mahler, Schoenberg among others. The letter referred to the fact that some of the 15000 scores available on IMSLP were still under European copyright, though they were now in the public domain here in Canada. In Europe copyright persists for 70 years after the death of the composer; in Canada the post-mortem period is 50 years.
Care had been taken to ensure that none of the works on IMSLP violated Canadian copyright law.
The originator and manager of the site was faced with a poor set of alternatives. Either he could remove the works complained about by Universal Edition, thus depriving Canadians (and, presumably, others around the world) of works they were lawfully able to see; or he could do as the letter suggested and install fliters on the site that would prevent European visitors (computers, actually) from having any access to the site and, thus, to the vast bulk of works that they were entitled to see. A university student lacking any resources to meet the challenge posed by this solicitor's letter, and not willing to cave in here only to find he had to cave in again later on because of some other jurisdiction's harsher laws, he packed in the site.
Wikipedia has a brief description of IMSLP and the dispute. You can read the cease-and-desist letter here. IMSLP's founder, whom everyone calls Feldmahler though the letter was directed to a Xiao-Guang Guo, established a forum where news can now be shared and opinions voiced about the debacle. Unversal Editions wrote to the forum defending its actions, and many supporters of IMSLP responded to their points, all of which you can access here.
The U.S. Project Gutenberg organization has offered to step in and save the site; but having American ownership and location of the site would mean a general loss of access to a number of works because of the protracted post-mortem copyright period in force there. So IMSLP has declined their kind offer.
IMSLP was by all accounts a stellar site, providing a marvelously rich resource. It made no money. It charged no money. It was intelligently scrupulous about complying with Canadian law. One has to wonder what the ghosts of Mahler et al. are feeling now. And one has to wonder where, if anywhere, the shades of foreign law lose force.
Lowest common denominator, here we come.
Hmmm… well, Mr. Clark is certainly in need of a good (actually, even a average) literary editor.
This is one of the web conundrums.
I suspect I'm right in saying – the other Simon might confirm if he is able to – that if IMSLP had operated only as a bricks & mortar operation in Canada, providing free copies of the scores in either paper or electronic form to people who physically attended at the store, the European rights owner couldn't have demanded that IMSLP check the home address of each person who attended and refuse to sell those from the EU.
I'm not sure what the status of a mail-order operation would be. Could the EU rights holder have demanded that IMSLP refuse to fill a request where the request comes from the EU and the material is to be shipped into the EU?
One might argue that allowing European based computers to access a Canadian based computer is the electronic equivalent of a person visiting Canada and going to the store; or a mail order operation. If so …
Pity.
From the UE AG statement on the IMSLP forum:
Dealing only with suggestion that IMSLP "install … IP-geolocation software which will block European users from downloading copyright material" – that paints starkly the analogy I to what couldn't be demanded in the bricks and mortar world. Could UE AG have demanded that IMSLP install a device which would block Europeans from entering the store etc?
Which leads to the question of whether we should be using technology (digital rights management software) to enforce our laws.
And why do Canadians who can lawfully use this material be denied the right to access it because those from other jurisdictions cannot?
The other Simon is far from a law library, and only half-recompressed from a fortnight in Umbria.
Don't get me started on the attempts by estates (and Disney Corp) to extract the last ounce of income out of works whose copyright has on any meaningful measure, lapsed. See Sonny Bono Act and Larry Lessig passime.