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this isn't a cultural sensitivity issue, it's an intellectual property issue. if IMSLP's free downloads causes lost revenue to universal edition in the countries in which they hold the copyright, then they are certainly within their rights to act. if someone starts a website in a country with lax copyright laws and offers free downloads of my CDs to everyone, would you think that's okay?

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Forget about cultural sensitivity, then. Let's talk about laws, instead: Consider something that's illegal in some countries, such as the depiction of Swastikas. Should US website operators be prosecuted for allowing such images to be viewed from countries such as France and Germany, where they are forbidden by law? I think not.

Applying the same principle to copyright, I conclude that if there's a country out there where your CDs are legitimately in the public domain, citizens of that country should definitely be free to make them available on their local servers, with or without country filters.

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According to Canadian lawyer Michael Geist:

quote:


In this particular case, UE demanded that the site use IP addresses to filter out non-Canadian users, arguing that failing to do so infringes both European and Canadian copyright law. It is hard to see how this is true given that the Supreme Court of Canada has ruled that sites such as IMSLP are entitled to presume that they are being used in a lawful manner and therefore would not rise to the level of authorizing infringement. The site was operating lawfully in Canada and there is no positive obligation in the law to block out non-Canadians.

As for a European infringement, if UE is correct, then the public domain becomes an offline concept, since posting works online would immediately result in the longest single copyright term applying on a global basis. That can't possibly be right. Canada has chosen a copyright term that complies with its international obligations and attempts to import longer terms - as is the case here - should not only be rejected but treated as copyright misuse.

He also acknowledges that some of the items were probably in violation of Canadian law.

In any case, according to Slashdot, Project Gutenberg has agreed to host the majority of the items that used to be on the IMSLP website, including "a few of the items that were demanded to be withdrawn".

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Mr. Geist's logic is a bit off when he claims that "if UE is correct, ... posting works online would immediately result in the longest single copyright term applying on a global basis." The whole purpose of filtering is to apply copyrights on a per-country basis. Canadians could still download anything public domain in Canada. Germans could download anything public domain in Germany, etc. The approach taken by IMSLP is equivalent to applying Canadian copyright terms on a global basis, which does make public domain an offline concept.

What is rather ironic about the whole thing is that the founder started the site because of difficulty finding scores in stock. And one of the main reasons scores are not readily available is because illegal copying and illegal downloads have made it unprofitable for publishers to issue big print runs and unprofitable for music stores to waste space stocking scores.

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He's right insofar as making a work openly available (without any filters) would result in "the longest single copyright term applying on a global basis".

I'm not convinced that piracy is the reason why certain works are unavailable, and as far as public domain works are concerned I don't particularly care if they're unable to turn a profit because of it. Besides, if the works are available online it's not going to matter one bit that the publishers won't stock those scores. That's what printers are for.

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  • 2 weeks later...

Soundboot, thank you for posting this well written and important article! And for those who might have difficulty accessing the link from the BBC;

In February 2006, a part-time Canadian music student established a modest, non-commercial website that used collaborative wiki tools, such as those used by Wikipedia, to create an online library of public domain musical scores.

Within a matter of months, the International Music Score Library Project (IMSLP) featured more than 1,000 musical scores for which the copyright had expired in Canada.

Within two years - without any funding, sponsorship or promotion - the site had become the largest public domain music score library on the internet, generating a million hits per day, featuring over 15,000 scores by over 1,000 composers, and adding 2,000 new scores each month.

In mid-October this year the IMSLP disappeared from the internet.

Universal Edition, an Austrian music publisher, retained a Canadian law firm to demand that the site block European users from accessing certain works and from adding new scores for which the copyright had not expired in Europe.

The company noted that while the music scores entered the public domain in Canada 50 years after a composer's death, Europe's copyright term is 20 years longer.

The legal demand led to many sleepless nights as the student struggled with the prospect of liability for activity that is perfectly lawful in Canada.

The site had been very careful about copyright compliance, establishing a review system by experienced administrators who would only post new music scores that were clearly in the Canadian public domain.

Notwithstanding those efforts, on 19 October, the law firm's stated deadline, the student took the world's best public domain music scores site offline.

Prof Michael Geist (Michael Geist)

*This case is enormously important from a public domain perspective. *

Michael Geist

While the site may resurface - at least one volunteer group has offered to host it - the case places the spotlight on the compliance challenges for websites facing competing legal requirements.

There is little doubt that the site was compliant with Canadian law.

Not only is there no obligation to block non-Canadian visitors, but the Supreme Court of Canada has ruled that sites such as IMSLP are entitled to presume that they are being used in a lawful manner. The site would therefore not be subject to claims that it authorised infringement.

Further, while there have been some suggestions that the site also hosted works that were not in the Canadian public domain, Universal Edition never bothered to provide the IMSLP with a complete list of allegedly infringing works.

Although IMSLP is on safe ground under Canadian law, the European perspective on the issue is more complicated.

There is no question that some of the site's music scores would infringe European copyright law if sold or distributed in Europe. However, the IMSLP had no real or substantial connection - the defining standard for jurisdiction - with Europe.

Indeed, if Universal Edition were to file a lawsuit in Austria, it is entirely possible that the Austrian court would dismiss it on the grounds that it cannot assert jurisdiction over the Canadian-based site.

Gavel and block, Eyewire

Geist: Making sites comply with all laws is an impossible task

And even if it did assert jurisdiction, it is unlikely that a Canadian court would uphold the judgment.

This case is enormously important from a public-domain perspective.

If Universal Edition is correct, then the public domain becomes an offline concept, since posting works online would immediately result in the longest copyright term applying on a global basis.

Moreover, there are even broader implications for online businesses. According to Universal Edition, businesses must comply both with their local laws and with the requirements of any other jurisdiction where their site is accessible - in other words, the laws of virtually every country on earth.

It is safe to say that e-commerce would grind to a halt under that standard since few organisations can realistically comply with hundreds of foreign laws.

Thousands of music aficionados are rooting for the IMSLP in this dispute. They ought to be joined by anyone with an interest in a robust public domain and a viable e-commerce marketplace.

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