April 21, 2011

The Rachmaninoff Covenant

As of this morning, the International Music Score Library Project, the online repository of public domain music, is offline, due to a rather iffy (to say the least) DMCA takedown demand from the UK-based Music Publishers Association. The full tale is on the IMSLP forum; Tim Rutherford-Johnson has commentary and links.

The trigger for this latest skirmish is the IMSLP's posting of the score to Rachmaninoff's The Bells, a work that is not under copyright in the US, no matter what the MPA might claim. But is the use of that particular piece and that particular composer coincidental? Hmmmm.

To wit: off the top of my head, I can think of three rationales for the MPA's attempted shutdown:
  • The MPA is a somewhat clueless organization, hoping to protect some royalties via corporate bullying.
  • The sheer questionability of the takedown notice is aimed at sparking a legal challenge that can then be appealed, a UK version of Golan v. Holder.
  • The copyright maneuverings behind the Rachmaninoff legacy are more cloak-and-dagger than I thought.
History inclines my opinion towards the first option; the devil-making-work-for-idle-hands aspect of certain corners of the legal profession might incline me towards the second. But my inner conspiracy theorist loves the fact that Rachmaninoff is at the center of this, because Rachmaninoff plus copyright equals fertile ground for at least mild conspiracy.

The majority of Rachmaninoff's works are public domain in the US for the simple fact that the nascent Soviet Union couldn't get their act together on copyright. Tsarist Russia had never signed on to the Berne Convention; Soviet attempts throughout the 1920s to create bilateral copyright treaties with various other countries were abortive. From 1917 until 1967 (when the USSR finally signed its first bilateral copyright treaty, with Hungary), the Soviets were not part of the international copyright system; works copyrighted in Europe or America, say, had no protection in the USSR, while works copyrighted in the USSR had no protection anywhere else. As soon as Rachmaninoff's music was published in Soviet Russia—The Bells, for instance, came off the press in 1920—it was PD everywhere else.

Stravinsky was in the same boat, which is why there are multiple versions of many of his pre-Soviet-era greatest hits—The Rite of Spring, The Firebird, &c.: Stravinsky revised the scores in order to copyright at least some version of them in the US and Europe. It's also a contributing factor, probably, to Stravinsky's demonic productivity. Rachmaninoff, though, neither revised his earlier works nor composed all that much after leaving Russia (though the selection was choice: the Rhapsody on a Theme of Paganini and the Third Symphony both post-date his emigration and, thus, remain snugly under copyright).

That hasn't stopped Rachmaninoff's descendents from trying to reassert some copyright control over the PD works. Some efforts have been relatively above board—the Rachmaninoff Critical Edition, for instance, done with the full cooperation and input of Alexander Rachmaninoff, the composer's grandson, and duly copyrighted 2005—and some more curious: you might recall Alexander Rachmaninoff Wanamaker, Serge's great-great-grandson, who wanted to do new arrangements of the Rachmaninoff catalog, just different enough to warrant fresh copyright. Wanamaker died in a fire in 2009, and the status of his efforts isn't clear, although this refashioning of the Third Symphony into a "Fifth" Piano Concerto might be some indication of the trend.

Now, do I really think that shady Rachmaninoff-connected minions are somehow blackmailing MPA executives into pursuing this legal action? That'd be a great story, but, no, of course not. But the Rachmaninoff situation is exactly the sort of thing that's being contested in the above-mentioned Golan v. Holder. A little background: the Berne Convention, which originally dates from 1886, has been the general international framework for intellectual property ever since. Which doesn't mean that it's been hewed to ever since: the US and Russia only got around to joining the Convention in 1988 and 1995, respectively, and when they did, they did so while specifically exempting themselves from the Convention's stipulations for retroactivity—in other words, neither country wanted to try and sort out royalties on works that, in each country, had been public domain for the better part of the 20th century. However, subsequent treaties have muddied the water, both WIPO, from 1996 (and the basis for the DMCA law that provided cover for MPA's cease-and-desist), and the so-called Uruguay Round, the 1994 trade agreements that also brought you the World Trade Organization. It's the latter that is the basis for Golan v. Holder—the Uruguay Round Agreements Act, under which Congress ratified the agreement, amended the US Copyright Code, providing for "the automatic restoration of copyright in certain foreign works that are in the public domain in the United States but protected by copyright or neighboring rights in an eligible source country." (According to the US Copyright Office.) That would be one heck of a precedent right there. But note that, even if the URAA were to stand up under judicial scrutiny, The Bells should have remained unaffected—its theoretical 75-year copyright term expired the day the URAA took effect, and, according to the Berne Convention, such natural-causes temporal expiration of copyright is immune to retroactivity.

Hence the prima facie ridiculousness of the MPA's claim. But, given the US Supreme Court's conservative majority's combination of pro-corporate cheerleading and (except for Anthony Kennedy) anti-international skepticism, I, for one, am not quite sure what to expect from Golan v. Holder; as a legal stalking horse for a similar case in the EU (not to mention a mixed metaphor), The Bells might adequately toll. Or, again, maybe the MPA is just yet another hidebound entity, deciding to run down the Internet, but tying their legal shoelaces together. Either one is plausible, really. Far less plausible, but far more satisfying to my dark, mischievous soul, would be a cabal of Rachmaninoff intimates, making a solemn vow in 1943, fanning out across the Western world, insinuating themselves into the corridors of copyright power, biding their time until the trap was ready to be sprung. The Bells would actually be a pretty good soundtrack for that movie.

Update (4/21): The MPA backpedals, kind of.

Further update (4/21): IMSLP is back up.

2 comments:

rbonotto said...

So -- what do ordinary musicians who use IMSLP do to give their support? (As a composer, I feel a bit odd in supporting a free site for music scores, but that's my problem.) Petition? Talk to Volunteer Lawyers for the Arts? I saw on the IMSLP site a very (for them) angry note on the top this morning: "While IMSLP encourages open discussion of copyright issues, we have zero tolerance for underhanded tactics. To MPA's credit, they have voluntarily retracted their claim. IMSLP will also be working on technical measures to prevent any future attacks." The first sentence almost sounds like the shaking of fists.

Debbie Jin Yu said...

Any sample that I can listen?