Question

[fsarud]

Hi,

I've typesetted the cello part of the Haydn Cello Concerto in C following the urtext edition by Barenreiter. This edition is not in the PD. Can I post this score anyways? Of course, I've made no mention about the sources.

Regards,

F.

[Philidor]

Of course, I've made no mention about the sources.

You have now.

I'm sure a copyright expert will be along to provide a definitive legal answer, but it sounds like a copyright breach to me. Look at it from Barenreiter's point of view. If you upload your manuscript it means someone can download a pirated Barenreiter copy, free of charge, as opposed to buying it from Barenreiter.

Why not typeset from a PD manuscript? Presumably you want the urtext. But that's an argument for tracking down a PD urtext edition, as opposed to nicking Barenreiter's.

[Choralia]

I'm not a copyright expert, but I think that there is a chance for your work to be acceptable on IMSLP.

Special copyright provisions apply to urtext editions. If I correctly traced information, this Bärenreiter urtext edition was published in Germany in year 1981. Protection on urtext editions lasts 25 years in Germany, so I think that protection in the country of origin has expired few years ago.

If you are located in Argentina (this is an assumption ), protection has probably expired in your country too, based on the following articles of the copyright law of Argentina:

DE LAS OBRAS EXTRANJERAS

Art. 13. — Todas las disposiciones de esta Ley, salvo las del artículo 57, son igualmente aplicables a las obras científicas, artísticas y literarias, publicadas en países extranjeros, sea cual fuere la nacionalidad de sus autores, siempre que pertenezcan a naciones que reconozcan el derecho de propiedad intelectual.

Art. 14. — Para asegurar la protección de la Ley argentina, el autor de una obra extranjera sólo necesita acreditar el cumplimiento de las formalidades establecidas para su protección por las Leyes del país en que se haya hecho la publicación, salvo lo dispuesto en el artículo 23, sobre contratos de traducción.

Art. 15. — La protección que la Ley argentina acuerda a los autores extranjeros, no se extenderá a un período mayor que el reconocido por las Leyes del país donde se hubiere publicado la obra. Si tales Leyes acuerdan una protección mayor, regirán los términos de la presente Ley.

If I correctly understand, Argentina applies the "Rule of the shorter term", so, if protection expired in Germany, it expired in Argentina, too. If this is correct (I'm not sure), you had the rights to typeset this work without the need to ask a permission from the publisher.

Your typeset can be then regarded as a new urtext edition, that you can release to the public on IMSLP under a Creative Commons license. However, the Bärenreiter urtext edition is still protected in the U.S., while it is not in Canada and in the EU, so maybe your edition can be hosted on IMSLP-EU only. Let's see what's the opinion of the experts.

Max

[pml]

I rather doubt a derivative version of the concerto in C can be hosted at IMSLP, seeing as the work was rediscovered in 1961 and never before published, so there would be issues of Editio princeps in respect of Canada overriding the RoST consideration of Germany’s Urtext ruling of 25 years protection. This is tricky, however, and I wouldn’t claim certainty.

If it applies, I suspect the solo cello part (ed. Rostropovich, pub. Supraphon 1963) and typeset parts are also in breach, but it may have been an unwitting oversight.

Regards, PML

[Carolus]

Canada's version of Editio Princeps applies some interesting criteria for a work of an author dead over 50 years (as is the case with Haydn, even as his music lives on). In order to qualify for the 50-year term from first publication, the work must not have been publicly performed or recorded in the composer's lifetime (highly unlikely to be the case here). The 1961 Supraphon score is also free in the USA also due to to not being eligible for restoration and not having been renewed after 28 years - and has accordingly been reprinted by Kalmus. I therefore expect you are quite free to post your own typeset here, with full credit to the source.

[pml]

Carolus, just to put a dampener on your comment: the concerto is very unlikely to have been publicly performed, because it was written for the Esterházy orchestra which in the technical sense gave private performances only, and the work doesn’t appear to have been transmitted by way of other orchestras performing the work in public (with attendant secondary scores). In short, the objection about public performance or recording doesn’t seem to apply here.

Regards, PML

[Carolus]

Interesting question. What constitutes a public (as opposed to a private) performance under the Canadian statute? Pulkert discovered the manuscript in Prague, which implies that the music might have circulated outside the Esterházy estate sometime between its first performance and the 1961 discovery-publication. (The 50-year meter starts running when a piece is publicly performed or recorded.) Canada has a version (Section 9) of "Rule of the Shorter Term", but the that part of the statute is so poorly written that its application would probably not come into play here (or in most other cases, for that matter).

[pml]

Indeed. A piece of concerted music can’t be performed without parts, so the survival of a full score alone does not imply that it has ever been performed; so we have the rather negative inference that the 1963 public performance may actually have been the work’s public première. The lack of any parts for the concerto having survived also mitigates against the work having had a wide circulation outside the Esterházy estate, in the same negative fashion (it is hard to disprove something didn’t happen!). So, the “50-year clock” might have started as of the year 1963, I think it is possible to argue. Like a number of other ambiguous cases, it’s unlikely someone would actually turn up to complain about an infringement, as there would be something of a case to prove.

Regards, PML

[fsarud]

Well, thank you very much for all your comments and insightful remarks, and sorry for the delayed answer.

I decided to post my typeset and let the copyright reviewers take the final decision.

All the same, some comments:

Indeed. A piece of concerted music can’t be performed without parts, so the survival of a full score alone does not imply that it has ever been performed;

the original found in Prague IS a set of parts (always based on the critical report of the Bärenreiter edition). And, indeed, some cadenzas to the first and second movements were added by and unknown copist cicra 1800, so it is more than likely that the work was performed outside the Esterhazy hall at least once.

Special copyright provisions apply to urtext editions. If I correctly traced information, this Bärenreiter urtext edition was published in Germany in year 1981. Protection on urtext editions lasts 25 years in Germany, so I think that protection in the country of origin has expired few years ago.

Excellent. It is truly important that urtext editions stand out of the general issues.

If you are located in Argentina (this is an assumption )

I'm astonished. How did you know? All the same, thanks for your comments about the legal issues here in Argentina. At least I know my copy here IS legal.

Thanks!

F.

[pml]

Thanks for the clarification fsarud, which goes a long way to dispelling any potential objection to your edition – in quickly researching the matter (since I don't have a copy of the Bärenreiter score) I made the error of presuming the wikipedia article to be factually correct in describing the 1961 discovery of a score, rather than a set of parts. Just goes to show how reliable WP is: not very!

Regards, Philip

PS: For your info, it is relatively easy for any moderator to establish that the IP address you used to register on this forum traces to Argentina. :)