Abstract
The paper focuses on the legal protection for critical editions of operas, considering the typical characteristics of these works with particular emphasis on the nature of re-elaboration and the originality standard required for copyright.
These topics started to receive judicial and legislative attention at the end of the last century, with different approaches especially emerged in the European Union countries, where there is still no decisive evidence of a full harmonization in the field of copyright.
By adopting a comparative perspective on the EU system, this paper provides a broad overview of national laws and relevant court decisions related to the critical edition, pointing out some crucial aspects such as the so-called “copyrightability” of a derivative work and the issues of authorship.
Who could own the copyright to a critical edition of a pre-existing opera?
Is it possible to define the critical edition as a restoration that gives a “new look” to the opera?
How to draw the fine line between counterfeiting and creative elaboration?
These are some of the basic questions that this essay critically examines and attempts to answer, taking into account not only the legislative framework but also the various solutions prospected by intellectual property scholars and commentators regarding the critical editing of music.
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Notes
- 1.
For instance, it was at the beginning of the nineteenth century that Vincenzo Monti realized the first Italian edition of the Homeric poem Iliade and revised it many times up to the last version, published by the Società tipografica dei classici italiani of Milan in 1825. On the musical field, in that period there was an increasing interest in editing the complete works of the major composers, by specific societies (such as the German Bach-Gesellschaft, which published the complete works of Johann Sebastian Bach) and publishers (as was for the Alte Mozart-Ausgabe published by Breitkopf and Härtel during the years 1877–1883, with supplements issued until 1910).
These first attempts to faithfully reconstruct the opera omnia of famous composers are sometimes lack in editorial additions, but they can equally consider critical editions because they are based on an intellectual activity of analysis, selection, comparison and interpretation of historical sources.
- 2.
In the late eighteenth century and during the nineteenth one, philologists focused on bringing the text back on its authentic version, by eliminating errors and variations which may have been added by copyists on the sources at different times.
This philological method was known as “textual criticism,” based on the idea of “restoring texts as nearly as possible to their original form.” See Kenney (1974), pp. 614–620.
In the second half of the nineteenth century, the importance of dealing with a source-based approach was particularly underlined by a branch of the philological studies, headed by Dante Isella and known as “authorial philology,” which put emphasis on the author’s intention and analyzed the existing different versions of the same text and the variants made by the author on his manuscript. See Gavezzeni and Martignoni (2009) and Isella (1987).
- 3.
Grier (1996), p. 156.
- 4.
Apollon et al. (2017), p. 99.
- 5.
Think about the sketchbooks, used by the composer to fix a musical idea or by the librettist to write down a first draft of the text. The importance of the sketchbooks as a source for reconstructing an opera is such that exist critical editions of the sketchbooks themselves. For an overview on this point see Sallis (2015).
- 6.
It was very common that an opera had to be changed in its musical components or in its libretto, due to the requests of the theatre management to realize a successful representation and to the concrete circumstances related to the public performance, i.e. the amount of the financial resources of the theatre, the availability of singers and musicians, the different types of audiences.
- 7.
The problem of historical reconstruction and authenticity was widely discussed both by philologists and musicologists. For many scholars, an authentic edition of an opera has to reproduce, as closely as possible, the intention of the composer or the librettist. On the other hand, critical editing cannot consist in a mere reproduction of what the composer wanted, which it is often complicated to understood also by using the autograph sources, as it is evident in particular for the so-called “passive intentions,” that are not “specific decisions concerning such matters as instrumentation, tempo, dynamic,” but “factors over which [the composer] had little control [and] he consciously or unconsciously assumed.” Butt (2002), pp. 89–90.
Making a critical edition implies an interpretation of the historical documents and materials in a reliable, but also personal and unique way. This creative effort is even present when the curator makes a simple transcription of musical scores or texts of a libretto.
Cf. Apollon et al. (2017), p. 184: “many people think that interpretation has no part in transcription, or that it should have no part in transcription procedures … However, interpretation-independent transcription is neither possible nor needed.”
- 8.
Critical editions are intended to be used by performers and, for this eminently practical reason, “it is to be hoped … that scholars will collaborate with performers in their editorial endeavors in order to create an edition that presents a text of the highest quality to which performers can add their interpretative marks.” Grier (1996), p. 152.
- 9.
As it is clearly explained by Gossett: “in some cases of course we have an autograph manuscript, and that helps us, but it is also where many of the problems start, because composers are known to have made mistakes in their autograph manuscripts. And, therefore, we are required – we feel it is necessary – to intervene and to correct errors that sometimes have been perpetrated on these works by printed editions from the beginning, so they are just mistakes in the old editions, simple mistakes.” Opera Lively (2012).
- 10.
In fact, “the editor of a critical edition must know thoroughly the sources of the music he or she is editing and be sufficiently versed in principles of editorial theory in the humanities in general and in music in particular to know how to use those sources.” Gossett (2005), p. 140.
It is also not worthy that the first and best-known critical editors were not only musicians, but, at the same time, philologists and jurists: just to mention some of them, Guido Adler (1855–1941), considered the father of modern musicology, graduated in law at Vienna University, and Pierre Aubry (1874–1910), French musicologist with a degree in law and another in philology.
- 11.
To keep some examples, in the Scandinavian Countries critical editions are not included among the copyrightable works. See the Finland Copyright Act (Act n. 404 of July 8, 1961, as amended up to April 30, 2010), the Sweden Act on Copyright in Literary and Artistic Works (Law n. 729 of December 30, 1960, as amended by Law n. 1274, of December 7, 1995), and the Danish Consolidated Act on Copyright (Act n. 1144 of October 23, 2014). The same occurs also in the copyright regulations of Luxembourg (Loi du 18 avril 2001 sur les droits d’auteur, les droits voisins et les bases de données), and Austria (Federal Law on Copyright in Literary and Artistic Works and Related Rights, as amended up to Federal Law Gazette (BGBl), I, n. 99/2015).
- 12.
For instance, Art. 3 of the UK Copyright, Designs and Patents Act (chapter 48, 1988) states that “‘literary work’ means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes (a) a table or compilation (b) a computer program; (c) preparatory design material for a computer program (d) a database; ‘dramatic work’ includes a work of dance or mime; and ‘musical work’ means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.”
Art. 2 of the German Copyright Act (Urheberrechtsgesetz—UrhG, Federal Law Gazette Part I, p. 1273, 1965), as last amended by Art. 1 of the Act of 20 December 2016 (Federal Law Gazette I, p. 3037) divides the creative works in more categories compared to the English one: literary works, musical works, pantomimic works, artistic works, photographic works, cinematographic works and illustrations of a scientific or technical nature.
The same legislative technique is used in the Italian Copyright Act (Law n. 633/1941), which lists ten categories of protected works, accompanied by some explanations and descriptions (e.g. for databases), and in the French Intellectual Property Code (Law n. 92-597/1992), that indicates fourteen categories of copyrighted works.
- 13.
Hilty and Nérisson (2012), p. 5, note 16, point out that some scholars support the idea of the exhaustive nature of the catalog.
- 14.
It has been well observed that “in ‘illustrative’ categorization (or an ‘open list’ approach), the general statement of copyright’s subject matter may be followed by a list of more specific categories that are identified as protected but … the list is not exhaustive.” Giblin and Weatherall (2017), p. 128. Looking at extra-European legal systems, an open approach is followed by the US Copyright Act, that, in listing the protected works at Art. 17 par. 102, uses the verb “include” before indicating the single categories.
- 15.
The described solution can create a negative side effect in terms of “weakening of the numerus clausus of property rights or … blurring of the boundaries between res and non-res, because the compliance with the requirement of copyright ‘work’ is the first step toward the creation of the legal concept of copyright-property.” Rahmatian (2011), p. 37.
- 16.
This happened not only for creations unknown in the past, such as TV format, databases or software, but also for other earlier intellectual works (recipes, perfumes, dissertations, cartoon characters, etc.).
- 17.
Council Directive 93/98/EEC of 29 October 1993. Official Journal of the European Union, L 290, 24.11.1993, p. 9. For a first comment on the impact of this new regulation on the protection of critical editions, see Fabiani (1996), p. 303 ff.
- 18.
Section 70, par. 3, German Copyright Act (Gesetz über Urheberrecht und verwandte Schutzrechte (Urheberrechtsgesetz—UrhG) of September 1995, as amended in December 2016.
- 19.
The reference to the lawful of the publication is present also in Art. 39 par. 2 of the Portuguese Code of Copyright Law (Decreto-Lei n. 63/85).
- 20.
Fabiani (2004), p. 202.
- 21.
Section 8 par. 2 of the Act clarifies: “copyright does not subsist in the typographical arrangement of a published edition if, or to the extent that, it reproduces the typographical arrangement of a previous edition.” Cf. also Torremans (2005), p. 196.
A reference to the typographical arrangement in also present in the Spanish Intellectual Property Act (Real Decreto Legislativo n. 1/1996), whose Art. 129 establishes that “editors of works … enjoy the exclusive right to authorize the reproduction, distribution and public communication of … editions, when such editions are capable to be identified by their typographic composition, presentation, and similar editorial characteristics” (translation by WIPO, available at http://www.wipo.int/).
- 22.
Critically, a commentator maintains that “it is strange that a European directive, which has as its principal objective the harmonization of European (copyright) law, uses a legislative technique that clearly has the consequence of creating disharmonization and legal uncertainty, ultimately, jeopardizing European copyright and the internal market.” Margoni and Perry (2011), p. 166. See also Angelopoulos (2012), pp. 567–594.
- 23.
Copyright Act of 9 September 1965 (Federal Law Gazette I, p. 1273).
- 24.
The scientific analysis is not defined by law, so it is necessary to borrow some solutions elaborated by the philological field, where the term “scientific” can be differently referred to the method adopted by the editor or to the quality of the results of his work; in the first case, following a scientific method requires mostly to make a critical examination of the sources, that is to say that “the method used is an objective and reasoned examination using more or less systematic criteria in order to discriminate between different texts, different versions or variants of a same text, and to exercise a judgment that leads to the establishment of a text.” Apollon et al. (2017), p. 99.
Instead, according to the Italian legal scholars, the scientific standard is met when the curator reconstructs an authentic version of the work by screening the materials available, following a codified method, or formulating personal solutions in order to complete any missing parts or to fill the textual gaps. Cf. Auteri (2012), p. 565.
- 25.
In the Italian Copyright Act, the scope of the dispositions on critical editions (Art. 85-quater to Art. 85-quinquies) is limited to the critical texts and not to the critical apparatus. See Basile (1998), p. 19.
- 26.
Cf. Italian Corte di Cassazione, 27.04.1961. See also Tribunale di Torino, 13.09.1995.
- 27.
De Sanctis (1976), p. 438. See also Tribunale di Milano, 22.10.1953.
- 28.
The early American courts created the concept of “distinguishable variation” to point out the level of originality required for a derivative work to differentiate itself from the underlying one. See the cases Alfred Bell and Co. v. Catalda Fine Arts, Inc. 191 F2d 99 (2d Cir 1951) aff’g 74 F Supp 973 (SDNY 1947), and Alva Studios, Inc. v. Winninger 536 F2d 486 (2d Cir 1976) rev’g 187 USPQ91 (2d Cir 1975).
- 29.
The concept of triviality was introduced by the US case law on derivative works. See the cases L. Batlin and Son, Inc. v. Snyder 536 F2d 486 (2d Cir. 1976) and Durham Industries, Inc. v. Tomy Corp. 630 F2d 909 (2d Cir. 1980).
- 30.
As a matter of fact, composers left some famous operas incomplete: it is worth mentioning Ernani by Vincenzo Bellini, Turandot by Giacomo Puccini and Ugo, Re d’Italia by Gioacchino Rossini.
- 31.
Tribunale di Torino, 13.09.1995.
- 32.
De Sanctis (2010), p. 80. See also Corte di Appello di Milano, 05.08.1955.
- 33.
See Art. 85-quater of the Italian Copyright Act, and also Basile (1998), p. 20.
- 34.
Bellani and Chimienti (2009), p. 255.
- 35.
Art. 85-quater of the Italian Copyright Act deals with the publishing agreement where a publisher hires a curator for the editing process, so there is no overlapping with the contractual agreement between the publisher and the curator ruling on the neighboring rights on the critical editions.
Cf. Bellani and Chimienti (2009), p. 255.
On the right to publish ex lege granted to the publisher, see Chimienti (2006), p. 342.
- 36.
See Art. 70 of the Copyright Act of 9 September 1965 (Federal Law Gazette I, p. 1273), which assigned to the publisher the neighboring rights on the critical editions for 10 years length, starting from the moment of the publication; such rights encompass the right to reproduce the critical editions and the right of public performance.
- 37.
Art. 4 of the Italian Copyright Act states: “Without prejudice to the rights subsisting in the original work, works of a creative character derived from any such work, such as translations into another language, transformations into any other literary or artistic form, modifications and additions constituting a substantial remodeling of the original work, adaptations, arrangements, abridgments and variations which do not constitute an original work, shall also be protected.” The inclusion of critical editions in the scope of this article was suggested by the courts since the middle of the last century (Tribunale di Milano, I sez. civile, 22.10.1953). In line with this legal thinking see Bertani (2001), p. 295 ff., Celoria (1955), p. 300, and Rescigno (1998), p. 86.
- 38.
The relevance of the two elements is stressed by the musicologist Michael Talbot who said that “there is normally no satisfactory alternative to preparing a scrupulous critical edition of the complete literary text according to the form it takes in the best musical sources. For this purpose, the text surviving in the corresponding libretto is not primary but secondary: it requires collation or at least consultation, but it does not override on principle the readings derived from the score. This means more work for the editor and a bulkier and costlier volume, but anything less than this cuts corners and falls short of the highest standards. Needless to say, it also requires the editor to know something about Italian language, poetry and drama of the period as well as about music.” Talbot (2006).
- 39.
Besides Germany, Italy was the only European Country which implemented Directive 93/98/CEE by recognizing the critical edition as a derivative work of authorship. See Art. 85-quater and 85-quinquies of the Copyright Act introduced by D. lgs. 154/97.
- 40.
- 41.
To summarize the matter, after editing L’Italiana in Algeri, Azio Corghi transferred the exploitation rights to the Rossini Foundation, that in turn sold part of these to the publisher Ricordi.
Ricordi granted the rental right and performing right on the edition to the Teatro Regio of Turin, for a remuneration calculated as a percentage under the prices of the tickets sold for certain performances of the opera. After the refusal of the theatre to pay Ricordi, claiming that L’Italiana in Algeri was in public domain and the edition of Corghi was devoid of any creative value, the publisher brought the matter before the Tribunale di Torino.
The originality of the edition produced by Corghi was denied in the first instance and also on appeal on the grounds that the contribution of the curator was, even though important, the result of a simple scientific research (Tribunale di Torino, 13.09.1995, and Corte di Appello di Torino, 16.03.1998). Cf. also Rescigno (1998), p. 86.
- 42.
Point 2 of the judgment.
- 43.
It is important to underline that the creative elaboration realized by the curator should not aim to replace the underlying opera, but to reshape it, respecting the style, the musical language and the compositional technic of its author. The novelty of the contribution of the curator lays in the elaboration and not in the creation of a new opera (cf. point 3a of the judgment).
- 44.
(2005) EWCA Civ 565, (2005) RPC 32, (2005) 3 All ER 636.
For a first comment see Rahmatian (2009), pp. 560–591.
- 45.
Sawkins undertook an action for copyright and moral rights infringements against the record company Hyperion, that rented the scores edited by him to record the cd Music for the Sun King.
The company remunerated Sawkins only with the rental fee and refused to pay the royalties generated by the licensing of the work, which was considered uncopyrightable as wholly lacking in any original component.
- 46.
On the contrary, the defendant argued that these interventions were completely unoriginal because they were mainly based on the dominant compositional techniques; for instance, Sawkins completed some missing parts of the figured bass by adopting a well-known method, i.e. indicating the harmony suggested by the melody of the music. Nevertheless, the Court stated that “the work does not have to be inventive,” especially in that case, when the intervention of Sawkins on the figured bass aimed “to ensure that the correct harmonies are played.” Sawkins “produced an edition containing the harmonies which, in keeping with baroque music, are essential to its proper realization and, in the form in which they appear, are not mere reproductions of an earlier version” (par. 65 of the judgment).
- 47.
Par. 20 of the judgment. After all, “there can be no doubt that Dr Sawkins has applied considerable skill and labour to the task of editing the four editions under consideration, based on his own expertise in respect of Delalande. The work was laborious and painstaking and extended over a considerable period of time” (par. 63). In fact, this work “involved the gathering of surviving manuscripts and prints and the choice of the most appropriate version, the insertion of missing material, the addition of figuring to bass or of a figured bass altogether and the re-composition of missing bars.” Derclaye (2010), p. 69.
- 48.
Par. 17 of the judgment.
- 49.
Par. 16 of the judgment.
- 50.
In the case SIAE c. Fondazione Teatro Maggio Musicale Fiorentino (Tribunale di Firenze, 01.09.2005) was granted protection to the critical editions of Rossini’s operas Cenerentola and Il Barbiere di Siviglia prepared by the curator Alberto Zedda, since his works were clearly different from the underlying materials in public domain. According to the judgment, these editions provide a cultural enhancement to the knowledge of the field, which reveals the deep examination of the sources and the intellectual efforts made by the curator, and, for this reason, they are creative elaborations protected under Art. 4 of the Italian Copyright Act.
- 51.
This happened for the Fausta of Gaetano Donizetti, completely reconstructed by the musicologist Saverio Durante in a critical edition, which was recognized as a “creative elaboration” by the Tribunale di Roma. For a first comment on the case, see Il Sole 24 Ore (2015).
- 52.
- 53.
Paoloni (2014).
References
Angelopoulos C (2012) The myth of European term harmonisation: 27 public domains for the 27 Member States. International review of intellectual property and competition law 43(5):567–594. https://doi.org/10.2139/ssrn.2145862
Apollon D, Belisle C, Régnier P (2017) Digital critical editions. University of Illinois Press, Urbana
Auteri P (2012) L’oggetto. In: Auteri P, Floridia G, Mangini V et al (eds) Diritto industriale. Proprietà intellettuale e concorrenza. Giappichelli, Turin, pp 546–580
Basile M (1998) Le edizioni critiche e scientifiche. AIDA. Annali italiani del diritto d’autore, della cultura e dello spettacolo: 14-2
Bellani V, Chimienti L (2009) Il diritto di autore nella prassi contrattuale: dottrina, giurisprudenza e formulario. Giuffrè, Milan
Bertani M (2001) Impresa culturale e diritti esclusivi. Giuffrè, Milan
Biscotti V (1990) L’edizione critica come opera dell’ingegno. Diritto dell’informazione e dell'informatica:851–861
Butt J (2002) Playing with history: the historical approach to musical performance. Cambridge University Press, New York
Celoria C (1955) Della titolarità o meno del diritto di autore in capo al critico che abbia pubblicato un’opera altrui in edizione critica. Rivista di diritto industriale 2:271–286
Chimienti L (2006) Lineamenti del nuovo di diritto d’autore: aggiornato con il D.lgs. 118/2006 e con il D.lgs. 140/2006. Giuffrè, Milan
Cosignani M (2001) Edizione critica e diritto d’autore: un’antitesi superata? Giurisprudenza italiana 7:1421–1423
De Sanctis V-M (1976) Brevi appunti in tema di tutelabilità delle edizioni critiche. Il diritto di autore: 437–443
De Sanctis V-M (2010) Manuale del nuovo diritto d’autore. Editoriale Scientifica, Naples
Derclaye E (2010) Copyright and cultural heritage: preservation and access to works in a digital world. Edward Elgar, Northampton
Fabiani M (1996) L’attuazione della direttiva CEE sulla durata di protezione del diritto d’autore e dei diritti connessi. Il diritto di autore:303–316
Fabiani M (2004) Diritto d’autore e diritti degli artisti interpreti o esecutori. Giuffrè, Milan
Fittipaldi O (2001) Edizioni critiche di opere musicali e creatività nella disciplina del diritto d’autore. Il Corriere giuridico 5:638–644
Gavezzeni F, Martignoni C (2009) Dante Isella e la filologia d’autore. In: Atti della Giornata di Studi, Università di Pavia, 30 October 2008. Strumenti critici 2:159–172. Il Mulino, Bologna
Giblin R, Weatherall J (eds) (2017) What if we could reimagine copyright? ANU Press, Canberra. https://doi.org/10.22459/WIWCRC.01.2017
Gossett P (2005) Critical editions: musicologists and copyright. Fontes Artis Musicae 52(3):139–144
Grier J (1996) The critical editing of music: history, method, and practice. Cambridge University Press, Cambridge
Hilty R-M, Nérisson S (2012) Balancing Copyright. A survey of national approaches. Springer, Heidelberg
Hobson M (2011) Critical editions and why the world needs them. http://www.voltaire.ox.ac.uk/www_vf/about_us/documents/Critical-editions.pdf. Accessed 30 May 2017
Isella D (1987) Le carte mescolate: esperienze di filologia d'autore. Liviana, Padua
Il Sole 24 Ore (2015) Il Tribunale di Roma sentenzia sul diritto d’autore: la Siae deve tutelare come opere creative anche le edizioni critiche delle opere liriche. http://www.diritto24.ilsole24ore.com. Accessed 30 May 2017
Kenney E-J (1974) Textual criticism. In: Benton W (ed) The new Encyclopaedia Britannica, vol 18. Chicago, pp 189–195
Margoni T, Perry M (2011) Scientific and critical editions of public domain works: an example of European Copyright Law (dis)harmonization. Reveu canadienne de propriété intellectuelle 27:157–170
Opera Lively (2012) Interview with Italian Opera scholar Dr. Philip Gossett. http://operalively.com. Accessed 30 May 2017
Paoloni S (2014) Il diritto d’autore sulle edizioni musicali a stampa: restrizioni legislative e nuove prospettive per la digitalizzazione. AIB Studi. Rivista di biblioteconomia e scienze dell’informazione 5(1). doi: https://doi.org/10.2426/aibstudi-9912
Pellegrino R (2002) Edizione critica di opera caduta in pubblico dominio fra diritto d’autore e diritto connesso (nota a Cass. 17 gennaio 2001, n. 559). Rivista di diritto industriale 3(2):235–246
Rahmatian A (2009) The concepts of ‘Musical Work’ and ‘Originality’ in UK Copyright Law – Sawkins v. Hyperion as a Test Case. International review of intellectual property and competition law 40(5):560–591
Rahmatian A (2011) Copyright and creativity: the making of property rights in creative works. Edward Elgar, Cheltenham
Rescigno E (1998) Edizioni critiche musicali e diritti di autore (Nota a Trib. Torino, 13 settembre 1995). Il diritto di autore:86–92
Sallis F (2015) Music sketches. Cambridge University Press, Cambridge
Talbot M (2006) What does one expect from a critical edition of a baroque opera? Philomusica on-line 5(2). https://doi.org/10.6092/1826-9001.5.63
Torremans P (2005) Holyoak and Torremans intellectual property law. Oxford University Press, Oxford
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Carugno, G. (2018). Critical Edition of an Opera: A New Look for an Old Lady? The Boundaries of Copyright Protection in the EU Countries. In: Annunziata, F., Colombo, G. (eds) Law and Opera. Springer, Cham. https://doi.org/10.1007/978-3-319-68649-3_18
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