Thread - IMSLP #785788

Can I have a link, please?

The discussion of US status seems correct to me.

> OK. First of all, Canada's 50-year rule only applies to composers who died after 1949

I can't find any source that says that, at least about the 50-year rule to which I'm referring. See https://laws-lois.justice.gc.ca/eng/acts/c-42/page-3.html --- Transitional Provision (4), the 1948 rule, applies ONLY when "(a) a work has not, at the coming into force of this section, [before January 1, 1999] been published or performed in public or communicated to the public by telecommunication" — and this work definitely was, being published in 1974 at the very latest.

So, since that transitional exception does not apply, then the following provision applies to this: "in the case of a […] musical work, or an engraving, in which copyright subsists at the date of the death of the author, […] but which has not been published or, in the case of a lecture or a dramatic or musical work, been performed in public or communicated to the public by telecommunication, before that date, copyright shall subsist until publication, or performance in public or communication to the public by telecommunication, whichever may first happen, for the remainder of the calendar year of the publication or of the performance in public or communication to the public by telecommunication, as the case may be, and for a period of fifty years following the end of that calendar year."

> and even then it does not apply if a work was performed, broadcast or "delivered" over 50 years ago. Canada therefore is no problem.

Indeed the work would be PD if delivered over 50 years ago. We just don't have any proof of that (as far as I can see). Now, do I think it's plausible that it was? Yeah, it's plausible. And the Canadians are pretty liberal with what constitutes delivery. I'm going to say that PROBABLY if it was indeed available to the public via a library before 1972, it should be considered PD in Canada.

> I believe the best solution for US status as far as the manuscript goes would be tag as "C" due to this ambiguous situation with respect to publication. It benefits nobody to lock the manuscript up when BNF itself places no serious restrictions upon it (they have a couple of pages of French boilerplate which say not to use it for commercial purposes). BNF could have saved us all some trouble by just releasing it under Creative Commons Attribution Non-commercial given the drooling insanity of US law, carefully penned by the finest congress that money can buy (to borrow a fine phrase from Will Rogers).

Sure, it would be useful for these things to be released as CC-Zero. But I would suggest that in addition to probably having no right to impose the NC restriction they claim to impose on the French downloader (who is downloading an unambiguously PD work in France), the BNF actually probably has no right to release this work under a CC license. As generally (though there are exceptions, and I don't know if this is one) copyright is not donated to a library with a manuscript (if it's even donated by the copyright holder, or with the permission of the requisite number of heirs to transfer copyright), libraries generally speaking have no right to release any work in their collection under a CC-Zero license, or any other CC-License. In any given jurisdiction, the work would either be in the public domain (in which case a copyright license regime would not apply) or the copyright remains vested in its holder, i.e., generally not the library, and so while it could be licensed, the licensor would have to be the relevant heir(s). Just because the work is PD in France, after all, doesn't mean someone besides the heir can release it as CC-Zero worldwide (for countries in which it's under copyright), even if they happen to be in France, or a library and/or the government.

Now, some libraries release things under CC licenses, but when they do this, they mean for it to apply to the scan itself, which wouldn't even be possibly eligible for a copyright in the US per Bridgeman v. Corel.

As for whether or not the worth should be in the public domain? Morally, I say yes. But indeed, copyright law can get pretty dumb (in the US and elsewhere).

> Because first publication took place in France and there is a second (anonymous or corporate) author is involved, Canada's version of Rule of the Shorter Term kicks in.

That would apply only with relation to the original contribution made to the edited edition, not to the original work.

If we assume that the original work was first delivered in 1974, whether it was through the publication of the edited edition or the circulation of the manuscript --- I think it's likely that the latter occurred first, by the way --- it was the first communication to the public of the original work. And as far as we understand, that original work was only Saint-Saëns', not that of any other unnamed co-composer.

So the original work becomes communicated to the public in 1974, and has 50 years of protection afterwards. There is no joint or corporate authorship added post facto. This cannot be done; a derivative cannot impact the copyright status of the original, even if published first (and thus even if it is the method whereby the original comes to be first communicated, which I suspect is still not the case). Even if there does exist a derivative work which were to be considered a copyrightable work of anonymous or corporate joint authorship, that changes nothing with relation to the copyright status of the underlying work.

By the same token, if a performance was done in 1974 from the newly-edited score, this would still only be a performance of the original, because there would be no significantly creative products in the performance originating with the editor and not Saint-Saëns. This is of course why of course the licensing of a performance is done based on the copyright status of the original work and not of the engraving.

> BTW, this is also a significant reason all the critical editions issued in countries outside the NAFTA treaty area are only protected for as long as they are in Germany, even if by some miracle they passed Canada's fairly high threshold of originality.

OK, but that only applies when the original underlying work is in the public domain in Canada. If the edition was original enough to qualify for new copyright in Canada, that new copyright has expired. But the original copyright has not.

Sam: I agree that there is no new copyright in the 1974 edition; if it ever was the case that the editor made a copyrightable contribution, then the copyright of that contribution would be subject to RoST, as Carl pointed out.

What I am saying is that the 1850 work itself is still copyrighted in Canada, because it was first delivered in 1974 and is not a joint work.

> We still don't know if it was first delivered in 1974 because of the fact that the manuscript was in the Library of the Conservatoire from shortly after death if the composer (end of 1921) until that library was merged with BNF (in 1935). If nothing else, the hoopla generated in 1937 over the discovery of Bizet's early symphony might have resulted in requests for microfilm or early photocopies from BNF. SS willed all of his manuscripts to the Conservatoire library. Once those owned by the composer were delivered there, Durand followed suit with those in their possession in the mid-1920s. Later on some from the collections of Malherbe and others were added. This one was likely in the composer's possession when he passed away.

Fair enough. It may well have been delivered before 1974.