OK. We need to back up here as there are some conclusions being rendered that don't quite hold up.
For music, there is more than one copyright. There is the copyright on the original composition. There is the copyright on the modification of the original composition (for example to use modern notation, etc). There is the copyright on the recording.
Sony has a copyright on some recordings of Bach music. They may also have a copyright on modifications of the original compositions, but I don't know if they do or not. They do not hold a copyright on the original composition, because that is in the public domain.
It is difficult to record classical music without infringing copyright because the modern printed scores are all modified. You can use the original scores, but they are actually very difficult to understand and are akin to a different language. In fact, as far as I can tell this is the reasoning behind allowing a copyright on the modern scores -- they are essentially translations (and translations of creative works are allowed new copyrights).
There are some scores that are both modern and in the public domain. Kimiko Ishizaka has been doing some good work on this front with her "Open Source Bach" series (and you can even get unmixed versions of her recordings under a CC license!!!). However, initiatives on this front are few and far between (consider throwing some money her way as she is worth supporting).
If you have a score for which you have a license to record (or which is in the public domain), then you can make a recording of it. It doesn't matter one bit if it sounds like a recording of a Sony recording. However, it is quite difficult to find such scores and often performers do not know enough about copyright law when they start doing their own performances for Youtube.
Also, for all those classics it's not that hard to find 100-150 year old editions which, while they may have had a separate copyright in their time, likely also fell into the public domain in the meantime (depending on if it's personal copyright or corporate, and if the former, how long the editor is already dead)
IMSLP contains thousands of scores in the public domain. I've never so far had to pay for a score for a public domain song because I found them all on IMSLP.
Not a musician here, and hadn't thought of that. And I don't recall that recent coverage of this re YouTube and Facebook have addressed copyright on scores vs on recordings.
I mean, how would one even do that, based just on recordings? Can experts tell what score was used for a particular performance?
Definitely. There are some youtube video showing the score of the music played along. Sometimes you can definitely notice divergences: the video editor took some random score of the same piece, and not the score used by the musicians!
Actually, there are software (not excellent AFAICS), and humans who just transcribe the played music into new scores. This may be easier to do that to take the original scores and modernize them, but then of course, this would be derived work of the played music...
I had always assumed that some version/edition of "foo" by "bar" (from the author, I mean) is always the same series of notes, with the same timing, played in the same way, etc. Or at least ideally. I knew that instruments differ. And that performers have different styles. And that there are parts of pieces that basically say "improvise here". And that performers occasionally make mistakes, or even consistently make some particular mistakes.
But it never occurred to me that there are variously derived versions. I mean, how can it be referred to as "foo" by "bar", when it's actually a distinct version. Indeed, distinct enough that it can be copyrighted. At that point, isn't it really "baz" by Sony (based on "foo" by "bar")?
A score is a very rough and incomplete model of the composition a classical composer had in his mind.
As Mahler said, the essential things of music are not in the score. Timing, articulation, phrasing, dynamics can make a piece sound totally different. The words alone are not the performed poem.
Non-musician here. Is it possible to create modern scores from the originals? I can engrave using Lilypond or Frescobaldi for choral music to make it print cleaner and super crisp. Is it that hard? Please explain...
Yes you can, and I believe Kimiko Ishizaka is using Musescore. I am not a musician either, but my understanding is that very old scores are hard to read. I don't know if the notation is different or if there is some other problem. It may even be that it's just hard to get your hands on a copy of the old scores that are not under copyright. This blog post describes one of the problems: https://www.kickstarter.com/projects/293573191/open-goldberg...
I was trying to find some links describing the difficulties of transcribing old scores, but unfortunately my google-fu is not up to the task. Bottom line, I don't know how difficult it is, but my understanding is that it isn't trivial.
I've got some experience playing from the original published editions of various pieces. If you want a visual feel for the differences go have a look at IMSLP's scans of period notation against modern editions their contributors have prepared (many of which aren't the pinnacle of modern music engraving, but are still way, way easier to read).
There are a number of reasons for why it's preferable to play from a modern edition if you're a modern musician. While we can of course learn to handle the older notation, we're battling with two different factors - firstly, the printing technology (or handwriting, if we're playing from copies of the composer's autograph score). As one might expect, music printing in the 17th century was nowhere near as clear or easy to read as modern editions can be, because of technical limitations coupled with various ideas they just hadn't had yet. And you get some features, like beamed quavers, which show up in handwritten music before the printers could do them. I'm pretty sure most of the originally printed music was intended to be studied and memorised rather than played at full speed from notation as we expect a modern orchestra to do. Musicians employed in ensembles at various courts around Europe would have been expected to do this, but they would've had handwritten music possibly prepared by the composer themselves (who would also be working for the court) for that occasion. And of course they would have been familiar with the musical handwriting conventions of their era.
But really the thing that gets you is that written musical language has evolved over the centuries. So if you go back and try to play from a facsimile of an original edition you're likely to run into all sorts of fun things, such as:
- music from before the invention of bar lines has no bar lines, and it's amazing how hard it is to learn to play without them these days
- accidentals didn't used to mean that it applied for the rest of the bar, as it does today, partly because they were invented before bar lines were invented
- accidental symbols themselves aren't the same as they once were
- the convention for notating key signatures has changed
- the convention for notating time signatures has changed
- because ledger lines are hard to write by hand neatly, and hard to print as well, there was a much greater diversity of clefs to allow parts to fit more comfortably within the five line stave. Modern musicians are used to playing from one or maybe two clefs on their instrument of choice. Some baroque concert programmes probably took their musicians through three or four of them on the same part between pieces or movements. To read these you need to understand what clefs actually indicate and be able to unmoor your brain from the fixed idea of what the bottom line of the stave represents.
- ornamentation marks have changed, and composers made their own up anyway
- performance conventions have changed (although modern editions generally don't go too far in putting those conventions into the notation because they're way too messy to notate even today, some of them do talk about them in the preface material)
- a lot of music from the time is full of mistakes, which can often be identified by comparing multiple sources of the same piece
A modern editor preparing a new edition of an old work will be rewriting the notation to modern conventions, adding bar lines, reworking key signatures, changing the clefs, fixing mistakes, adding explicit markers for what would have been implicitly understood accidentals in some styles, maybe changing ornamentation marking to something more readily understood by a modern musician... it's a big job.
Which is why the copyright in performance of these editions is defended by their publishers, because someone had to pay for all of that. If you want a copyright-free recording you have to go back to the originals yourself, as well as finding willing musicians and engineers to record it.
And after all that work... the layman, and the lay-algorithm, probably won't be able to tell them apart anyway.
The expense is the reason publishers defend copyright. Technically, what matters for copyright is not the total cost of effort, but the creative work involved.
Aren't most of those changes pre-20th century while anything published before 1922 would have an expired copyright? You wouldn't have to go all the way back to the original to escape copyright, you would just have to go back 96 years.
Wow, great post. This is all very interesting, I love music history. Do you have any recommendations of good books on the subject of evolution of music, notation, compositions etc?
mathw explained most of it well. Read his reply first. One other factor he seems to have missed is that finding the original is a problem.
In some cases they were destroyed. All we have are copies which are already different from each other with no indication of which is most right.
In others they are locked in some library that won't let you look at it because you might make a copy and they want to hide the original for some reason.
In others the composer edited the score after the first performance and we have both. Now you get to choose which edition to use.
For music, there is more than one copyright. There is the copyright on the original composition. There is the copyright on the modification of the original composition (for example to use modern notation, etc). There is the copyright on the recording.
Sony has a copyright on some recordings of Bach music. They may also have a copyright on modifications of the original compositions, but I don't know if they do or not. They do not hold a copyright on the original composition, because that is in the public domain.
It is difficult to record classical music without infringing copyright because the modern printed scores are all modified. You can use the original scores, but they are actually very difficult to understand and are akin to a different language. In fact, as far as I can tell this is the reasoning behind allowing a copyright on the modern scores -- they are essentially translations (and translations of creative works are allowed new copyrights).
There are some scores that are both modern and in the public domain. Kimiko Ishizaka has been doing some good work on this front with her "Open Source Bach" series (and you can even get unmixed versions of her recordings under a CC license!!!). However, initiatives on this front are few and far between (consider throwing some money her way as she is worth supporting).
If you have a score for which you have a license to record (or which is in the public domain), then you can make a recording of it. It doesn't matter one bit if it sounds like a recording of a Sony recording. However, it is quite difficult to find such scores and often performers do not know enough about copyright law when they start doing their own performances for Youtube.