Using published typography of 16th Century manuscripts?

[Tim Thomas]

I have a question regarding Scottish and English 16th century music manuscripts that have been collated, typeset, and published by a major UK publishing house.

The book in question is scholarly in scope and (to the best of the editor's abilities) no contemporary 'arranging' has been made other than to format the original, handwritten notation into a modern, type-set version for study purposes.

My interest in this music is as a music researcher and conductor of a small group of historical re-enactors who enjoy performing ancient music as authentically as possible.

May I utilize the 16th century music that has been typeset and published in the 1970's for rehearsal and non-recorded performance for non-commercial purposes?

Subsequently, if I may use this music material, can it be photocopied, would I need to make my own typographical transcription, or something else?

Thanks much for anyone who can shed light on this!

Tim

[AndyJ]

Hi Tim,
I think there is little doubt that you are free to perform the music as you wish, there being no copyright in it. That includes recording your performance and selling copies of the recording if you wish. (Copyright as the concept we know it today only started in 1710 and even then it did not encompass musical works).
There is a problem however with photocopying the published sheet music, as this attracts what is known as copyright in the typographical arrangement of a published edition. However this flavour of copyright only lasts for 25 years from the end of the year of publication of the first edition of the work. So if the book from which you are working is a subsequent print run or later edition, you need to check the date it was originally published. Anything published prior to 1 Jan 1987 will be out of copyright. However, if having checked, it appears that the edition is still in copyright for its typographical layout, you may transcribe the notation into your own layout without infringing this copyright. I don't know if there is such a thing as optical character recognition software for music, but if there is, that would make your task somewhat easier.
Alternatively it might be worth contacting the publishers about obtaining a licence to make a limited number of copies for re-enactment group. If they are music publishers, they should be geared up to provide this service.
Unfortunately I don't think any of the dispensations available for educational purposes would apply in your case.

[Tim Thomas]

Hi, Andy -

Thank you so much for your quick and comprehensive response!

The publication in question was first published in the 1970's, although it has gone through 2 editorial updates (the latest after 1987).

If I'm understanding you correctly, then, I can transcribe the notation of music included in the publication, even though the most recent edition is still in copyright, as long as I don''t just photocopy it. Do I have this correctly?

And, by the way, optical character recognition of music notation has been around for a number of years, although (in my opinion) it has only become reliable enough to utilize within the last 6-7 years. With the proper software, one can scan a printed page of music, correct any OCR mistakes, then send the resulting file into a music notation program such as Sibelius or Finale.

Kind regards,
Tim

[AndyJ]

Hi Tim,
With regard to the copyright in the later edition of the book, much will depend on if there have been any significant editorial changes since the first edition. The law says:

8 Published editions.
(1) In this Part “published edition”, in the context of copyright in the typographical arrangement of a published edition, means a published edition of the whole or any part of one or more literary, dramatic or musical works.
(2) 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.

So if you are able to compare the typographical layout of the copy you hold with the first edition and can see no difference between them, then copyright will have lapsed. There is very little caselaw on this subject but generally speaking there would need to be substantial updating to invoke a new copyright term.
Obviously if you are able to access a copy of the first edition from the 1970s and it serves your purposes, then you may freely photocopy it.
However if a first edition is not available or there is any doubt about it, it would be best to play safe and either obtain a licence or transcribe the notation.
By the way you can't always trust publishers when they put copyright notifications on their books. Sometimes it's a bluff and sometimes they genuinely don't know themselves, and so, since there is no law against making a false claim to copyright in this way, they tend assert whatever is most beneficial to their commercial interests.