A Copyright Issue

CPDL topics that don't fit in the other categories
Antonyx
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A Copyright Issue

Postby Antonyx » 06 Sep 2012 16:57

Last December my choir performed the Bortniansky Kheruvimskaya Pesn No 7 in concert. It was a good performance, so I decided to upload it onto Youtube. It remained there for a couple of months, but one day I noticed there was a possible copyright claim against it. At this stage I let matters rest, as there was nothing definite. More recently, however, there was a more serious notice and, as I am a law-abiding sort. I decided that I would remove the video. As I was concerned to do nothing illegal, or to prejudice my standing with Youtube, I acted quite precipitately and unfortunately neglected to note the exact tems used in connection with the claim.

On checking back here (CPDL) I find the following on the score:

"Copyright © 2001 by the Choral Public Domain Library (http://www.cpdl.org)
Edition may be freely distributed, duplicated, performed, or recorded."

This has me totally confused. I assumed that the CPDL covered me adequately. Now I am questioning whether the piece is ok to record/post on Youtube or not. Or is there some other element that I am unaware of.

I need some advice on this as my choir are asking where the performace has gone. However, I have no wish to fall out of good standing with CPDL,Youtube or anyone else - or run into legal difficulties on a copyright issue.

Advice/help, please.

choralia
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Re: A Copyright Issue

Postby choralia » 06 Sep 2012 23:05

Music works are generally subject to copyright from various entities: the composer, the lyricist, the translator, the editor, the publisher, the performers, etc. . Any of them may claim intellectual property under the appropriate circumstances.

The CPDL edition in subject (#03973 by Laurent Vauclin) is released by the editor under the CPDL license. This means that Laurent Vauclin allows everybody to freely distribute, duplicate, perform or record his edition. However, this is limited to Laurent Vauclin's rights as the editor of such specific edition available on CPDL. The other subjects may still claim their intellectual property on this work (or on a performance of this work), within the limits set by the applicable copyright laws.

It would be interesting to know who claimed copyright on it, under what role (translator? performer? ...), and based on what legal considerations (e.g., jurisdiction of competence). It might be even possible that it was a totally bogus claim (they are quite frequent, indeed).

Max

vaarky
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Re: A Copyright Issue

Postby vaarky » 07 Sep 2012 09:13

In addition to what Max wrote, there is also a possibility that an editor posted an edition on CPDL but was mistaken about the composition's copyright status. The main thing, as Max mentioned, is to understand who filed the claim, on what basis, and whether the claim was mistaken.

Antonyx
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Re: A Copyright Issue

Postby Antonyx » 07 Sep 2012 10:13

@Choralia & Vaarky,

thank you for your answers,

I scanned through Youtube's pages. Although I wasn't absolutely certain, it looked like I would have to challenge the copyright claim to find out who was making it. I understood that this could be leaving me open to defending my position at law. That would be very expensive and, frankly, I wouldn't have the kind of money that could involve.

Moreover, in the time available to me, I couldn't find any 'contact' link where one could question the matter with Youtube on who was claiming rights. I agree, however, that it would be interesting to find out who the plaintiff was, but I have many other choral demands, especially at this season, than would allow taking issue with Youtube.

The performance was posted in bona fide, and I was as certain as I could be that I was in compliance with copyright law. It appears though that it is almost impossible to be sure of this. So, although it is disappointing, ultimately it was easier to remove the clip. Of course I could consider reposting it, but that would leave me in the position where Youtube could revoke my 'good standing' status.

Thanks again.

David.

choralia
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Re: A Copyright Issue

Postby choralia » 07 Sep 2012 11:11

vaarky wrote:there is also a possibility that an editor posted an edition on CPDL but was mistaken about the composition's copyright status

This is totally right in general, however I think that it is rather unlikely in this specific case.

Bortniansky died in 1825, so copyright on his compositions may still apply only under "Editio Princeps", i.e., for posthumous works published for the first time after a certain date. In the US, where CPDL is located, "Editio Princeps" may only apply to works published for the first time after 1923. This specific work appears to have been edited and arranged for SATB by Tchaikovsky (died 1893), and published in 1881 as an item of the collection "Choral complete sacred works by Dmytro Bortniansky". So, I think that the composition's copyright status was correctly determined by the editor.

Max

CHGiffen
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Re: A Copyright Issue

Postby CHGiffen » 07 Sep 2012 16:06

It is not uncommon to find editions of works that are otherwise in the public domain which are "edited" and published and sold under some sort of copyright. Aggressive publishers have been known to assert the copyright status of their own editions over those made freely and legitimately available, usually with the expectation that they can bully individuals with lesser resources into withdrawing their editions, recordings, videos, etc. While I'm not a lawyer, it does seem to me that if the performance was from a legitimate freely available edition (such as CPDL's), then the publisher of a different commercially available edition of this work cannot legitimately demand a takedown. But - as I said - I'm not a lawyer.
Charles H. Giffen
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anaigeon
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Re: A Copyright Issue

Postby anaigeon » 07 Sep 2012 22:10

I scanned through Youtube's pages. Although I wasn't absolutely certain, it looked like I would have to challenge the copyright claim to find out who was making it.

And this isn't fair IMHO ! Why does YT first give the point to the claim, rather than to the publisher ??
I personnally have a YT and FB friend who recorded renaissance or baroque pieces (playing viol or harpsichord), and got copyright claims !!
An account can be closed after several justified claims, ok - but I think the author of several unfair claims should be banned, too !

Antonyx
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Re: A Copyright Issue

Postby Antonyx » 07 Sep 2012 23:38

I am learning about copyright, so I greatly appreciate the trouble you have gone to with your postings.

I can understand that an 'edition' can derive a rights of its own. The problem here is, that short of having an ability with a crystal ball, how is one supposed to know all possibile such editions? Moreover, if Tchaikowsky issued an edition in 1881, and a choir were to sing that edition, surely the choir not could not be held to have breached the rights of a later edition - assuming that there was the remotest possibility the choir could know of the later edition?

And would I not be correct in assuming that the 1881 edition should now be in the public domain?

I do, of course recognise that even though I live in France, the European 70 year rule would likely not apply, as Youtube is probably in the US - but even there 1922 and earlier should be in the public domain...or am I wrong in this?

Bonsoir Anaigeon et merci pour votre soutien.. Yes, I do think that YT has the balance unduly weighted in favour of anyone who makes a copyright claim. At the least, they might ascertain where the claimant's alleged right derives from, and pass this information on to their (YT's) subscriber. This would at least allow the subscriber to make a proper judgement regarding such a claim without damaging their standing with YT.

The really annoying thing is that there are at least 4 other performances of the Bortniansky Keruvimskaya Pesn still up on YT. So what gives here? I suppose I could repost the performance by my choir, but that would probably be seen as being provocative and result in my being banned. I don't seem to find any link to contact YT to query the matter with them.

Merci, Grazie & Thanks

David

vaarky
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Re: A Copyright Issue

Postby vaarky » 08 Sep 2012 03:00

YouTube's instructions for a counter-claim are here:
https://www.youtube.com/t/copyright_counter

I am not a lawyer, but here are my thoughts anyway. These appear to be just YouTube's summary of what applies in most cases. I suspect that requirements by YouTube above what the DMCA requires may not be enforceable. For example, under the DMCA, there are other valid defenses (such as public domain) besides what YouTube describes. And, last I checked, YouTube did not persuade Congress to code into federal law that someone has to waive their choice-of-jurisdiction rights by agreeing to YouTube's choice of geographic jurisdiction in order to execute a DMCA counter notice. If YouTube gets a counter-notice that satisfies the federal law (including a detailed explanation of why the work is in the public domain but not agreeing to YouTube's choice of geographic jurisdiction), they are still obligated to follow the law.

Here is the link to the text of the law:
http://www.law.cornell.edu/uscode/text/17/512
(including the section on counter notification)

Antonyx
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Re: A Copyright Issue

Postby Antonyx » 08 Sep 2012 16:15

I have been through the YT procedure again. They will accept a counter claim only in the case where they have removed an item. In this case they did not remove the posting. I did, to avoid hassle.

However, were I to pursue a counter claim, then they would happily pass on all the details they have on me to the original claimant. The most I might hope to ascertain would be the country in which the claimant is resident. Not allowing the 'accused' to face their 'accuser' is unbalanced, unfair and and reminiscent of the approach of the Inquisition. :(

In this present case there is possibility that claim could be a nuisance ploy. I was taken to task over a trivial matter. My response was that a critique of the performance would have been of far more value all round. Perhaps it raised hackles. It is no more thatn surmise. I will never know. It would be healthier if a claimants also were to have their personal information made known to those against whom they make a claim.

Still, I will not complain, for I have gained a lot of valuable information. Nor will I raise the issue with YT, as the removal was entirely my choice. They did not act unilaterally, or force my hand. (This does not alter my opinion about a lack of fairness and balance!) And moreover, I really do not have the time or energy to engage in a process that would not stand, due to my over-hasty action in seeking to remain a good member. It is a lesson learned, however.

Once again Thanks to you all.

vaarky
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Re: A Copyright Issue

Postby vaarky » 08 Sep 2012 20:55

A related posting describing the frustration and confusion users feel, in case you're interested.

http://lauren.vortex.com/archive/000986.html

carlos
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Re: A Copyright Issue

Postby carlos » 09 Sep 2012 06:01

Antony, you still have the option to post your video to other sites, as vimeo.com for example.

Cdalitz
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Re: A Copyright Issue

Postby Cdalitz » 09 Sep 2012 08:34

It might be helpful to encourage the editors to name their sources, so that end users can prove the public domain status against performance right societies or other third parties. Mentioning the sources can also prevent editors from relying on non PD material and save choirs relying on CPDL editions from falling into an unexpected trap.

IMO, this should be mandatory for all CPDL editions, but I do not have a practical solution at hand how to enforce it, not to speak of the problem of the editions already posted at CPDL that lack sources information. Maybe adding a section "Sources used for this edition" on every CPDL edition site would be a first step in the direction. Maybe it is possible to make this a 'must have' field for future editions?

Chris

Antonyx
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Re: A Copyright Issue

Postby Antonyx » 10 Sep 2012 21:01

@ Chris,

I will certainly look into asking YT, but I am not optimmistic that I will get an answer. It will take a while as I have to give what time I have available to preparation for my choirs.

@ Carlos,

I subscribed to Vimeo, but am not at all impressed with it. :( The site is opaque. Granted, I am not bright when it comes to computers, but put in a start and stop button and I can use them. It took me more time that I care to admit :oops: to get a Vimeo video to play. Also the organisation of the site is all over the place. Or maybe it's just me. As an alternative to YT I found it not really satisfactory. But thanks for the suggestion anyway. Are there any other sites that I could look at, please?

carlos
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Re: A Copyright Issue

Postby carlos » 11 Sep 2012 05:35

Antonyx wrote:Are there any other sites that I could look at, please?


Some other alternatives that I can think of at the moment are:
http://www.dailymotion.com/
http://www.metacafe.com/


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