Monday, October 22, 2007

Über-Reaching C&D letter from Universal Edition’s CDN Lawyer

Michael Geist has exposed a shocking - though not surprising given the kind of overreaching letters that some lawyers can write - example of a C&D letter that threatens legitimate use of the public domain in Canada. It strikes this blogger close to the heart because it involves classical music and some of my favourite composers. Unfortunately, the content on the International Music Score Library Project (IMSLP) site has already been taken down already - so we don’t know what it looked like.

A lawyer named Ken Clark at the Toronto firm of Aird and Berlis has demanded on behalf of Universal Edition AG (an über-important and highly respected classical music publisher) that this apparently research based totally non-commercial site that was run by a student site that apparently posted public domain music scores block out internet users from life + 70 countries, and do certain other impossible things. This might be possible if it were selling the scores, because credit card info and other geo-location tools could be deployed. But I understand that this was a low tech labour of love research based site - so apparently Universal’s demand is not technically possible. The letter also implausibly and impossibly demands that a filtering system be installed to prevent uploading any of Universal’s scores until the copyright has expired in Europe (where life + 70 applies).

More to the point, these demands are not justifiable. For starters:

1. What the student was doing was arguably entirely 100% legal. Canada has a life + 50 year term and many of us will fight very hard to keep it that way. This episode is a very good illustration of why it should remain that way.

2. If C&D letters like this catch on, Canada will have to accede to the highest (sic - lowest?) common denominator of mindless copyright extensions - which currently is that of Mexico. The latter has irrationally extended its copyright term to life + 100 years. Talk about being nice to the USA!

3. Canada has no “making available” provisions in its law - so the fact that someone out “there” in the jurisdictional sense in a life + 70 country can see this site doesn’t make it illegal in Canada.

4. If there is any illegal reproduction going on, it’s out “there” in Germany or some other life + 70 place and not “here” in Canada.

5. Absent any “real and substantial connection”, i.e. targeted activity directed to life + 70 countries, there is no basis in Canadian law for these claims. Justice Binnie has told us so in SOCAN v. CAIP.

6. Above all, the Aird and Berlis letter is absurdly overreaching. It lists several composers, some major and some minor, who are included in the publisher client Universal’s catalogue. These major ones include:

B. Bartok - died 1945

A. Berg - died 1935

L. Janacek - died 1928

G. Mahler - died 1911

A. Schoenberg - died 1951

7. Note Mahler - who died in 1911, Berg who died in 1935 and Janacek who died in 1928. That’s more than life + 70.

8. The others mentioned above are all PD in Canada.

9. Judge Richard Posner - whose influence cannot be overstated - has a suggestion for those that engage in "overclaiming" copyright rights that they don’t have - or misuse their rights too much - which is that of forfeiture.

10. That’s not a bad idea in a case like this. It might stop such overreaching C&D letters that are but the tip of the iceberg Canada could collide with if Canada follows the wishes of CRIA and Ambassador Wilkins on copyright revision.

11. Michael is right about the applicability of the CCH v LSUC case - the student is entitled to presume that the resource will be used legally, and in most countries in the world life + 50 is still the law.

12. This is all about cultural sovereignty.

This is a big issue for the student who started all of this and it’s understandable that he has retreated. He can’t fight this alone.

If this C&D letter is answered and the issue is fought - and it should be - I hope that various organizations such as CAUT will support the cause. Otherwise, Canadian professors won’t be able to post anything about James Joyce - or countless other creators who are still are in copyright somewhere and have litigious representatives.

And projects like Project Gutenberg could be threatened as well.

Come to think about it, if Access Copyright really believes in the importance of the public domain, as it claims, here’s a chance for it to demonstrate that commitment. BTW, where is that project announced a year and a half ago - or is it vapour ware?

Somebody should host this site, so the student behind it isn’t exposed. It’s sounds like it would be a good resource for young and old musicologists alike.


Update - a comment received notes that Janacek died in 1928, not 1948 as originally posted. I've updated the material above. That puts him, as well, beyond the life + 70 term.


  1. Hello Howard,

    If you wish to see the site as it was Dec 31, 2006:

    The web archive has more snapshots of the site as it has evolved.

  2. Hello Howard,

    We try again: the site as it was Dec 31, 2006:

  3. Hello Mr. Knopf:

    Carolus (an admin) from IMSLP here. We really are in desperate need of legal help with this. It would really violate IMSLP's basic mission to take down the titles mentioned by Universal Edition and deny access to them where they are clearly in the public domain. (All but one composer are PD in Canada and the majority of titles are PD in the USA - including the one obscure composer still protected in Canada.)

    Thanks for bring this situation to the attention of the legal blogosphere. Leos Janacek died in 1928, not 1948, by the way.

  4. Given Point 5 on “real and substantial connection”, and targeted activity directed to life + 70 countries, systematically trying to maintain the copyright status for life + 70 countries, may, by some stretch of reasoning seen as targeting those countries. For this reason, Project Gutenberg refrains (with exception of a general remark, and a historical case regarding Peter Pan) from saying anything about the copyright status of works outside the US.