Re: Academics and coursepacks

On Fri, July 10, 1998, Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
>
> 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 unpublished pre-1978 manuscript does support a copyright if the new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 This mining of unpublished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 But as I read, once the copyright in unpublished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.

In the case of some of Shakespeare's plays, which we have in several "second-hand" versions, there is no "author's text". What has been published as his plays was in many cases taken down by others orally, sometimes mis-heard. There are several versions of some plays, all incomplete or defective. The plays were often revised, so we have isolated "snapshots" of the work-in-progress. Mr Shakespeare did not write for publication, but for presentation, and others gathered his works in the folios. A modern edition of Shakespeare is, therefore, a synthesis of many pieces, rather than a mere collection of emendations. It's rather like reconstructing an ancient building from severely damaged ruins. The pieces may be there, but it will take an architect (not a repairman) to re-create the original.

Michael Scarpitti
<mscarpit[_at_]asnt.org> Received on Mon Jul 13 1998 - 01:46:23 GMT