Re: Academics and coursepacks

Mr. Scarpitti and I seem to disagree on the what the copyright status of emendations should be. By an emendation I mean a scholarly correction to a prior author's text. It can be based on a collation of manuscripts and editions, or on experience and conjecture. Changes of this sort, to my mind, are not "original works of authorship" of the scholar who makes them. The scholar is trying to establish what the text of an original work of SOMEONE ELSE's authorship was. Ordinarily, then, the scholar should not be entitled to a copyright in the emendation.

For this reason, the court in the case of Desclee & Cie et al. v. Nemmers was wrong to find copyrightable the Solesmes rhythmic notation. The Solesmes scholars insisted that their system reproduced the ancient rhythm of Gregorian chant. Scholarly opinion was against them. Most scholars consider that old Solesmes system to be a new-fangled interpretation with no historical roots. But for copyright purposes, the monks of Solesmes should have been held to their representation of their rhythmic interpretation as ancient. Since this amounted to a denial of originality, copyright in the rhythmic notation should have been denied.

Under U.S. law as I understand it, a new reading based on an unpublished pre-1978 manuscript does support a copyright if the new reading is published before a certain deadline. The proprieter of the copyright in the new reading is the person to whom the state-law right of first publication was assigned, and not necessarily the sholar who actually brings out the new edition. This mining of unpublished manuscripts is, I believe, the technique that has been used in the U.S. to keep parts of some of Emily Dickinson's poems under copyright to this day. But as I read, once the copyright in unpublished pre-1978 works expires, this method will no longer work in the U.S.

In the case of Shakespeare's plays I doubt this approach would be possible. Ordinarily I would consider everything in a published edition of Shakespeare that was represented as Shakespeare's to be in the public domain, even if no prior edition had precisely the same text of Shakespeare's work. How much effort the textual scholar put into establishing the new readings is irrelevant. Copyright extends to authorship, not effort. Our hypothetical professor should be allowed to copy the text of the play itself as many times as he likes, from any edition. I would also consider it a fair use of the copyrightable portions of the edition if he were to make one copy of the play including the copyrightable notes, then use scissors and paste to lay out only the text of the play, without the notes, for further copying.

Of course, nothing in this post constitutes legal advice or establishes a lawyer-client relationship, etc.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Fri Jul 10 1998 - 16:38:31 GMT