| Symphony No.1, TrV 94 (Strauss, Richard) ⟨User:Carolus⟩ |
[#33970] |
A brief explanation of this piece's copyright status, and the status of the 1999 edition.
Some facts
- The work was composed by the young Richard Strauss, a German living in Germany, in 1880.
- The work was first publicly performed in 1881.
- The work was recorded on CD in 1986.
- This edition of the work was published in 1999, and is to my understanding the first edition ever prepared and published of the work.
For Germany
- Richard Strauss died in 1949. When this edition was published in 1999, his music was certainly still protected by copyright in Germany. The copyright protection on Strauss' work in Germany expired in 2020.
- The editio princeps rule only applies to works which are first published after the author has been dead for over 70 years. Since Strauss' copyrights had not expired in 1999, it could not apply. In light of Motezuma, it might not apply anyway (i.e., the symphony may not have been ein nicht erschienenes Werk in 1999); moreover, the symphony was recorded in the 1980s and released on CD (which could be the first Erscheinung — but again, the question doesn't arise, because even if we take 1999 to be the first Erscheinung, it was erscheint when Strauss was protected by German copyright).
- The scientific edition rule only applies to editions of works which are no longer copyrighted at the time of the publication of the edition. In Germany, this only applies to editions "if they represent the result of scientifically organised activity and differ substantially from previously known editions of the works or texts"; this edition is not portrayed as a scientific edition, but even if it were, it would not have a 25-year period of protection, because it was an edition of a work still copyrighted in 1999.
- No editor is identified for this score. There are no musical indications of an apparently editorial variety. The volume contains two works — this symphony and another unrelated composition (the latter reprinted directly from a much older source). The only new addition that has been made to the volume is a short preface from the Strauss family and introduction (whose author is credited). The Strauss family thanks the author of the introduction only for writing the preface and not for editing any of the music. The only person designated as the author is Richard Strauss. According to German copyright law, "The person designated as the author in the usual manner on the copies of a released work or on the original of an artistic work is regarded as the author of the work in the absence of proof to the contrary"; since Strauss is the only designated author, there is not even a claim of editorial authorship present here. In other words, the work presented can be taken to be that of Richard Strauss alone.
- Conclusion: The copyright on the work itself expired in 2020. The edition does not likely have any copyright status independent of Richard Strauss' copyright, which expired in 2020.
For Canada
- Richard Strauss' copyrights expired in Canada (in general) in 2000.
- In Canada, this work was not a posthumous work, because it was publicly performed in 1881, during Richard Strauss' lifetime, and so the copyright on the work itself expired in 2000.
- We have the general assumption that engravings per se do not qualify for new copyright in Canada. There are, as mentioned, no indications of any editorial authorship. In line with a Canadian Federal Court's acceptance in Winkler v. Hendley of a principle similar to copyright estoppel in US law, the that authorship for copyright purposes lies solely with Richard Strauss can probably be taken for granted here given the lack of even a claim of editorial authorship or identification.
- For whatever it might be worth, Canada (as we understand it based on recent discussions) applies the Rule of the Shorter Term to all works by foreign nationals, except Americans and Mexicans. While this might not be strictly applicable here with respect to the edition (where the questions do not really deal with lengths of terms), they certainly can only add to the impression that the edition itself is in the Canadian public domain, assuming it is in the German public domain.
- Conclusion: The work and edition are both apparently in the public domain in Canada.
For the United States
- This work was created before 1978. When it was first published by US standards is not entirely clear to me, but the term of copyright seems to be fairly clear in any case.
- The work was created and performed before 1891, when the US first established international copyright relations with anyone. I do not recall the details of the application of common law copyright to works made by foreign nationals before 1891, but I recall that common law copyright did apply to those works, so long as they remained unpublished abroad. The case law on this is very slim. Twin Books and Societe Civile Succession Guino (both of which are considered by many to be quite dubious decisions from the Ninth Circuit) have some potential relevance, but deal (especially the former) with more clearly published works, and neither purports to discuss the situation of a work from before 1909. David Nimmer argued ("An Odyssey Through Copyright's Vicarious Defenses," 1998, 73 N.Y.U. L. Rev. 162, p. 173) that Twin Books could arguably extend protection to even ancient works, although he says this conclusion is absurd. Anyway, since this issue has not been directly resolved, let me resolve it by making an adverse assumption (for us): let us assume that the work was protected by common law copyright from its creation, and that it remained unpublished and unprotected by common law copyright until at least 1986, if not 1999.
- Putting the mishegas surrounding foreign works from the 1800s out of the way, and continuing from our assumption, the work was first published either in 1986 (when it was recorded) or 1999 (when the score was published). Either way, the US copyright for that work would then last until 2048.
- For many reasons, the edition should have no copyright independent of the work.
- Conclusion: The work (and presumably edition) are copyrighted in the US until 2048.
In short, the scan should be OK (and our usual rule about new Urtext shouldn't apply in the first place, because this edition would not qualify for the 25-year right in Germany, as discussed). I am tagging it C/48/C.
| Posted at 16:08, 30 January 2023 by Dbmiller (administrator) |
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I assume this is from the large Volumatic edition of the Complete Works of Strauss? Was there a preface written by an author? If so I don't think we can accept this.
Daniel in my opinion (I know your not going to agree with what I said), because the edition was first published less than 25 years ago still currently for both Canada and the EU, because of the voluntary rule on IMSLP we still have follow for urtext editions, we really should not be sidestepping this rule regardless on here out of courtesy of the publishers that Carl and Edward are sticking with (and your forgetting the fact that the first publication occurred less than 25 years). Your reasoning is very insightful, but I don't think we should be accepting editions like this (because otherwise this would open up other urtext editions and volumes we are walling off because of the voluntary rule we have in place) this recently until at least 25 years have passed. Its considered an urtext edition regardless of your reasoning. Many urtext editions like from Baerenreiter of even more long dead composers are also in the same vein (where the score is remained untouched without any editing) as what your talking about here and those were first performed and published during there lifetimes (and we haven't accepted anything from volumes until the 25th year has passed). 25 years needs to pass before we can accept these kinds of editions. Just because the copyright expired in 2020 for Strauss does not mean the first edition has expired yet. Until we get to 2025, then I think we can accept it by that time.
If its from this, we definitely cannot accept this until 25 years have passed. But i'll leave this up to Carl to decide. If this were re-engraved, then we probably could accept a typeset of it, but not this edition.
Posted at 18:06, 30 January 2023 by Sallen112 (administrator)
Edited at 18:09, 30 January 2023 by Sallen112 (administrator) |
| > I assume this is from the large Volumatic edition of the Complete Works of Strauss?
It is from the old Strauss edition, which is (except for this piece) mostly reprints. It is not from the new critical edition of Strauss' works.
> Was there a preface written by an author?
We can't accept the preface, but that's not included in the scan. The preface has nothing to do with any editorial work, either. It is just a brief comment on the history of the piece.
> because of the voluntary rule on IMSLP we still have follow for urtext editions, we really should not be sidestepping this rule
The rule (as we voluntarily apply it in Canada, following the actual rule which is German law) is that we don't post Urtext editions that are under 25 years old and which therefore are still protected by German "scientific edition" copyright (as most of those editions are German).
> Many urtext editions like from Baerenreiter of even more long dead composers are also in the same vein (where the score is remained untouched without any editing) as what your talking about here and those were first performed and published during there lifetimes. 25 years needs to pass before we can accept these kinds of editions. Just because the copyright expired in 2020 for Strauss does not mean the first edition. Until we get to 2025, then I think we can accept it by that time.
I think you must be misunderstanding the German 25-year rule. New critical editions are protected for 25 years in Germany, only if the work is already in the public domain before the edition is published. A new edition of Mozart is protected for 25 years, because Mozart is PD in Germany. But, for example, a new edition of Stravinsky published today in Germany (hypothetically) would not be subject to the 25-year rule, because Stravinsky is still copyrighted in Germany. The same applies for a Richard Strauss edition from 1999.
Think of it this way:
- If it has been under 70 years from the composer's death, the heirs have a copyright. But this expires 70 years after the composer's death.
- Only if the heirs no longer have a copyright, German law gives the publisher a 25-year scientific-edition right.
It's very similar to plate rights in Taiwan vs. the rights of heirs there (as we discussed previously).
Basically, the EU urtext rule can't apply to an edition published with 70 years of the composer's death; it can only apply to a new edition published after the composer's copyright has expired.
| Posted at 18:15, 30 January 2023 by Dbmiller (administrator) |
| Yes, it is from the 1999 edition. But there is no 25-year copyright in Germany on this edition because it cannot be a scientific edition.
Don't take my word for it — here is the official translation of the German law.
Section 70
Scientific editions
(1) Editions of works or texts which are not protected by copyright are protected accordingly under the provisions of Part 1 if they represent the result of scientifically organised activity and differ substantially from previously known editions of the works or texts.
(2) The author of the edition is entitled to exercise the right.
(3) The right expires 25 years after publication of the edition, but 25 years after its production if the edition was not released within that period. The period is to be calculated in accordance with section 69.
It only applies to new scientific editions of works that are not still protected by the life+70 copyright. The EU directive says the same thing. It does not apply to posthumous works published while still copyrighted.
| Posted at 18:19, 30 January 2023 by Dbmiller (administrator) |
| "I think you must be misunderstanding the German 25-year rule. New critical editions are protected for 25 years in Germany, only if the work is already in the public domain before the edition is published. A new edition of Mozart is protected for 25 years, because Mozart is PD in Germany. But, for example, a new edition of Stravinsky published today in Germany (hypothetically) would not be subject to the 25-year rule, because Stravinsky is still copyrighted in Germany. The same applies for a Richard Strauss edition from 1999."
Performances do not apply in the EU, only in Canada, its based on First publication of the first edition, which is less than 25 years,
| Posted at 18:20, 30 January 2023 by Sallen112 (administrator) |
| No! The editio princeps rule only applies to works that are already in the public domain too.
Section 71
Posthumous works
(1) Anyone who has a previously unreleased work released legally for the first time after the expiry of the copyright [OVER 70 years after death of the author] or communicates it to the public has the exclusive right to exploit the work. The same applies to unreleased works which were never protected within the territory to which this Act applies but whose author has been dead for more than 70 years. Sections 5 and 10 (1) and sections 15 to 23, 26, 27, 44a to 63 and 88 apply analogously.
(2) The right is transferrable.
(3) The right expires 25 years after the work was released or, if its first communication to the public occurred earlier, 25 years thereafter. The period is to be calculated in accordance with section 69.
You're right to think that the 1881 performance is not necessarily relevant in the EU like it is in Canada. That doesn't matter, however. The editio princeps right only applies if the work was first published more than 70 years after the author died. Strauss was dead only for 49 years when this was published. So his family had the rights (which all expire at the same time), and there was no 25-year period for the publisher.
Basically for the EU, remember, Strauss' heirs owned the copyrights until 2020, when they expired, so, for example (hypothetically).
R. Strauss work published ANY time from Strauss' lifetime to 2019 –> Copyrighted at publication. Rights owned by Strauss/heirs until 2020 expiration. NO editio princeps right for publishers.
R. Strauss work discovered in 2023 and published for the first time in 2023 -> The original copyright expired; the publisher (NOT Strauss' family) gets a 25-year editio princeps right.
There are only two 25-year rules (editio princeps and scientific edition). NEITHER applies here, because they require that the author died more than 70 years before publication.
Posted at 18:25, 30 January 2023 by Dbmiller (administrator)
Edited at 18:27, 30 January 2023 by Dbmiller (administrator) |
| Actually you know what and I am forgetting this, I did actually upload this Hindemith work years ago and because it was less than 25 years back in 2014, we did accept it based on first performance and the copyright does indeed expire 70 years for the EU until 2034.
| Posted at 19:39, 30 January 2023 by Sallen112 (administrator) |
| Indeed. Similarly, a Kurt Weill score from 2006 seems OK, although the editors for this one are credited. Going with C-CA and C-EU on that as well. Weill went PD-EU in 2021.
| Posted at 11:03, 1 February 2023 by Dbmiller (administrator) |
| As I mentioned in our previous discussion about urtext editions, while I do believe that in general we should be observing the 25-year rule I also have no problem in 'nibbling around the edges'. Dbmiller makes a compelling case here. The 1999 score was designed to protect the work in countries with 50-pma terms via editio princeps even though it does not meet the standard for such a claim in the EU where Strauss was covered until 2020. EP does not apply in Canada for the reasons stated above. It might be protected in other places which had a 50-year term in 1999 - e.g. Japan, Korea, Australia (where Strauss went PD in 2000 for most things), depending on how they treat posthumous publications. The work is probably covered in the USA until 2048, but looking in Trenner I note a second performance given in Munich on January 1, 1893 conducted by the composer's father Franz. This raises some questions about whether or not there was publication due to the possible copying of scores and parts and involvement of the Munich firm Aibl, who was already publishing the works of the composer by 1893. If publication took place under the Motezuma standard in 1893, the whole editio princeps claim collapses in the EU. This also somewhat applies in the United States. In any case, it failed to meet the editio princeps standard in the EU as it was published before the composer was dead over 70 years there. As I recall the EU countries all extended their terms to 70pma in the 1990s before this took place.
I think free in Canada and the EU is the case, and 2048 stands for the USA unless we can make a really strong case for publication in 1893. A score or set of manuscript parts with 'Jos. Aibl' stamps would likely be enough to shoot down the claim in the USA and in any other countries where some version of editio princeps might apply.
| Posted at 22:57, 1 February 2023 by Carolus (administrator) |
| Well, indeed, there is no possible editio princeps claim in the EU at all, because the EU editio princeps rule can only apply to works first published after the copyright has expired, and this was copyrighted everywhere in the EU at the time. In other countries that have an editio princeps rule, it's possibly protected, but that would have to be examined on a case-by-case basis.
As for publication, I was under the impression that US standards might be stricter than the German standard in Motezuma, but I admit it's plausible the work was published by US standards in the 1800s (although I can't show it, and so I presume it wasn't). The other question involves whether or not foreign works created (and exploited, but not published per se) before 1891 even potentially qualify for US copyright, which has never to my knowledge been litigated in the US.
| Posted at 23:00, 1 February 2023 by Dbmiller (administrator) |
| I think they have been stricter than Motezuma but it's also possible that the German case could have some influence on future cases. The question concerns whether 'copies' were made under the authorization of the composer, how many were made and what was their distribution. For example, if we found an advertisement of this piece on an Aibl publication from 1893 that alone would likely constitute publication as the work was being offered for further distribution - even if only a few manuscripts circulated. It's not present in the Sonneck LOC catalog of 1911-12 even though the Op.12 is listed there as an Aibl print from 1885. LOC directly wrote publishers requesting manuscript copies of items not actually engraved and printed in that era and the catalog contains a number of such items. So far the case for it even meeting the Motezuma standard in Strauss' lifetime looks slim, though it's a moot point in the EU now.
Would EP or its equivalent apply in Australia or Japan even though it was literally in the final year of protection in both places in 1999? Maybe, but we can't have a tagging system for 200 different countries either. Posthumous issues are one of those areas were things are done differently from place to place. Canada has a very decent standard to prevent too many absurdities. As for pre-1891 items in the USA published works of foreign origin basically had no kind of protection. Schirmer and some other publishers serving as agents attempted to enter things in the clerk's office of the district court but this seems to have failed. With unpublished items think there were some cases in the 1880s in several states which held that unpublished works of foreign origin were covered under common law which allowed some German or Austrian composers to be paid for their US premieres. These were decided in state courts, not federal courts.
Posted at 23:30, 1 February 2023 by Carolus (administrator)
Edited at 23:32, 1 February 2023 by Carolus (administrator) |
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