A representative from Universal Edition has posted a statement to the IMSLP messageboards. Good on him for doing so. He suggests that the recent C+D letter is the final step in what had been an amiable dialogue with IMSLP over copyright issues; there isn’t much elaboration on what he means by this, but sure, there are likely emails and so on that we haven’t (and probably won’t) see. No problem: there’s obviously been a lot of heat in the discussions.
There’s some bluster that UE didn’t close the site and that “I am most perplexed as to why this decision was taken”. I think the IMSLP owner has made his reasons clear on this, and they seem reasonable enough: after taking legal advice, he decided that his easiest option was to close the site down rather than comply with UE’s demands – and thus begin an engagement with complex (and as yet internationally unresolved) copyright arguments. Who is to say that UE’s C+D wouldn’t be the thin end of a wedge, particularly after the publicity one takedown would generate (as has been shown)? Where would it stop?
This brings me to a point I made in some comments below, but that I want to bring above the fold. Since in theory any published work (particularly a musical score) may have a still-existing copyright in that edition, any one looking to republish that as a public domain work would do well to hold off until an editor had been located and permission (if needed) secured. However, this a three stage process:
1. Is the score in a copyrighted edition
2. Who holds that copyright
3. What are their contact details
All three stages of which are very-hard-to-nearly-impossible to determine. (See Orphaned works.) Meaning that once publishers start aggressively pursuing such copyrights, it’s essentially impossible to be sure whether a score actually is in the public domain or not (even if it is) and thus you’re always taking a risk. I wouldn’t blame anyone for deciding that the risk isn’t worth it. And thus, in an age of unprecedented public access to public domain materials, the public domain is forcibly squeezed out of existence.
The fact is that letters from lawyers put the frighteners on people – of course they do! – and if you don’t have or can’t afford legal representation of your own, it is much easier to throw your hands in the air and capitulate. That, after all, is the point of a cease and desist letter: to win the case before it even gets to trial. I think in such circumstances, I would have done the same.
The least convincing part of the UE statement is this, though:
3. The arguments presented to us by IMSLP basically amount to a rejection of existing copyright laws in a number of countries. Discussion of international law is by all means welcome and can be very interesting, but you can’t just tell a traffic cop that you don’t like the speed restrictions on the highway because another country has different rules.
Discussion of international [copyright] law is certainly very interesting; it’s also an ongoing discussion full of very big questions – some of them directly related to this case – that don’t look like being answered any time soon, and UE certainly aren’t any more privy to those answers than the rest of us. And that highway analogy cuts both ways: just as a driver shouldn’t be allowed to drive at German speed limits on a British motorway, so a British traffic cop shouldn’t have jurisdiction over the autobahn.