IMSLP Redux

The International Music Score Library Project has been described as the largest collection of public domain musical scores in the world. Established in Canada in 2006, the site was staffed entirely by volunteers who carefully vetted contributions for copyright compliance. Yet in 2007 the site was threatened with severe penalties by European music publishers who were concerned that IMSLP material would surface in Europe. At issue was the distinction of a public domain set by life plus fifty years in Canada, as compared to the European public domain of life plus seventy years. IMSLP shut itself down, but resurfaced a year later and continues to thrive. I previously wrote about IMSLP here.

Two days ago Michael Geist brought us news of more challenges for IMSLP. A music publishers’ association (based in the U.K.) succeeded in removing access to the site, by way of the notice-and-takedown provision of the United States’ Digital Millennium Copyright Act (DMCA). That provision of American law allows Internet Service Providers to be sheltered from liability for the conduct of their subscribers. In principle, this is good; ISPs are integral to the operation of our connected, digital world. In 2004 the Canadian Supreme Court emphasized the importance of keeping ISPs in a neutral position:

Parliament made a policy distinction between those who abuse the Internet to obtain “cheap music” and those who are part of the infrastructure of the Internet itself. It is clear that Parliament did not want copyright disputes between creators and users to be visited on the heads of the Internet intermediaries, whose continued expansion and development is considered vital to national economic growth (para. 131).

However, American policy has placed their ISPs in a less-than-neutral stance. To be immune from liability an ISP must, upon receiving notice of alleged infringement, immediately remove the offending material or possibly cut-off the subscriber. There is no due process. It is a guilty verdict first, then followed by defense (if the subscriber is knowledgeable enough to present one.)

As Michael Geist points out, we are fortunate that Bill C-32 did not propose such an extreme measure. Instead, C-32 adopted an existing system of notice-and-notice. A Canadian ISP maintains its neutrality by forwarding on a notice of complaint to the subscriber. Some measure of record-keeping is in order and ISPs are in favour of maintaining this system. During the Legislative Committee Meetings on Bill C-32, Pam Dinsmore (VP, Regulatory/Cable, for Rogers Communication Inc.) said:

In our view, notice and notice is the best and fairest way to make individuals aware that they are accused of illegal peer-to-peer file sharing while recognizing that ISPs should not unduly interfere with our customers’ online activities. While we recognize that the regime is not perfect, we believe it does result in discouraging repeat offenders. The fact that some European countries are beginning to consider notice and notice as a valid response to illegal file sharing and that some ISPs in the U.S. have notice and notice agreements with rights owners serves to underscore that Canadian ISPs have been ahead of the curve …

Later in that meeting, MPs were presented with data illustrating the effectiveness of the notice-and-notice process. Michael Geist summarized some of that discussion here.

But for all of the merit of notice-and-notice in Canada, IMSLP was still at the mercy of the DMCA. Reason being, IMSLP’s domain name is registered through an American-based company and that is where the notice was sent. IMSLP very competently dealt with the frivolous claims, and the site is accessible again. But it is a troubling reminder of the challenges that can arise for any blog, business, or artistic endeavor that has an Internet presence.

correction to The New York Times

Earlier today The New York Times posted an article about the International Music Score Library Project. A Canadian endeavor, this site holds an extensive collection of public domain music scores and recordings. Founded in 2006 by a college music student, his aim was clear:

The ultimate goal of the IMSLP is to gather all public domain music scores, in addition to the music scores of all contemporary composers who wish to release them to the public free of charge.

Looking through the IMSLP archive, it is evident that the project entailed more than just collecting music scores; the volunteers sought to build a community of music lovers that would engage beyond the contribution of music, to promote engagement with music.

[As I write this, the article is behind a login screen. Nevertheless, correction is still needed…]

The impression cast by the NYT is that the site began with faulty copyright practices:

Universal Edition, a music publisher based in Europe, where copyright laws tend to be stricter, threatened a cease-and-desist order against the site for copyright violations in October 2007. Mr. Guo said he did not have the time or money to remove all the offending scores, so he took the site down completely and posted an emotional farewell. That, he said, galvanized followers to appeal to Universal.

This implication is a disservice to IMSLP. The site operated with strict controls concerning the uploading of music scores to the server. What caused the disfavour was the behaviour of individuals outside of the project; Europeans were accessing the site for music scores that were not yet public domain material in Europe. Universal Edition demanded that IMSLP block access to European and American users, and, agree to hefty financial penalties which were “non reducible by court” for any violation. That Universal’s claim had no basis in Canadian law did not deter the publisher from further insisting that IMSLP agree that punishment could be ongoing. This was more than ironic; as one person observed:

Of all the sites where printed music is available for download, IMSLP was virtually alone in actively discouraging copyright infringement by informing the end user about the copyright status of works in various countries.

The NYT article further misrepresents the situation with the remark that, “The site operates from servers in Canada, where copyright law is generally looser,” erroneously implying that IMSLP was exploiting some unfortunate loophole in the law. The reality is simply that copyright term is shorter in Canada than in Europe or the United States. Canada adheres to the Berne Convention minimum standard of life of the creator plus fifty years. Then, like now, IMSLP provided detailed information concerning when a work entered the public domain. Those early instructions can still be viewed in the archives; notably, careful distinction was drawn between the copyright terms of the composer, editor and publisher, all of which contributed to the date of entry to the public domain.

When IMSLP went offline in 2007, the BBC covered the story quite well and observed that:

There are even broader implications for online businesses. According to Universal Edition, businesses must comply both with their local laws and with the requirements of any other jurisdiction where their site is accessible – in other words, the laws of virtually every country on earth. It is safe to say that e-commerce would grind to a halt under that standard since few organizations can realistically comply with hundreds of foreign laws.

Happily for music enthusiasts the site is alive and thriving. But Universal Edition did not acknowledge their past behaviour and instead conveyed to the NYT that the music publisher was “unfairly maligned by its critics for doing what music publishers typically do: use revenue from the sale of old pieces to finance publishing of contemporary composers.”

Perhaps acknowledgement has to be inferred from the publisher’s current description of IMSLP as “this very valiant and completely kosher and clean repository of public material, which we perfectly endorse…”