Updated Licensing Policy and Guidelines

[DBMiller]

Hello everyone,

If you are submitting your own editions, recordings, arrangements or compositions to IMSLP, please review the updated licensing policies and guidelines.

Here is a summary of the most important changes:

• We no longer accept files under a "CC-ND" (No-Derivatives) license. Our mission is to share free content — content that is not only free as in zero-cost to the user, but free for people to use. New compositions under a CC-ND license cannot be used, for example, to create recordings. These restrictions have led to considerable confusion in the past. IMSLP's role is not to provide free hosting for pieces that cannot be used, and so CC-ND submissions are no longer generally allowed.
• We have deprecated the "CC-NC" (Non-Commercial) licenses. These licenses suffer from significant ambiguities and are not accepted by other free-content organizations (such as the Wikimedia Foundation) or by the Definition of Free Cultural Works. We recommend using the Creative Commons Attribution-Share Alike (CC BY-SA) license instead. CC BY-SA, while allowing a copy to be sold, requires that the copyrighted work (and any derivative uses) remain freely shareable and reusable (as must be noted on all copies). Not only does this effectively prevent most commercialization in practice, it reduces ambiguity (making it clear that it's OK, for example, to print copies at a print shop to distribute to schools) and increases our compatibility with other major free-content projects.
• In a clarification in line with the original intent of the licenses, the Performance-Restricted licenses can only be used if the works are covered by a "blanket license" through a performing rights organization (PRO). Anyone who wishes to submit PR-licensed original compositions must send proof of PRO membership to dbmiller@imslp.org.

We will be updating the site's forms and pages in the coming days to reflect these changes. Files uploaded before the announcement of the changes will not be affected. Additionally, more explainer pages for copyright/licensing issues and improvements in the submission process will be rolled out in the future.

[agarvin]

I've contributed quite a bit to IMSLP over the years, and I've been happy to do so, but if I can't redistribute my work with a license that prevents commercial copying, I simply will not upload anything here again.

--Allen Garvin

[DBMiller]

I've contributed quite a bit to IMSLP over the years, and I've been happy to do so, but if I can't redistribute my work with a license that prevents commercial copying, I simply will not upload anything here again.

--Allen Garvin

Hello,

Since you have commented on it, I would like to tell you why the NC licenses are deprecated on IMSLP, and the real-world impact on the commercialization of editions first published on IMSLP.

One problem is that the NC licenses are not generally accepted by other free-content sites (such as Wikimedia Commons, for example), nor are they accepted by the Open Definition or the Definition of Free Cultural Works. To the extent that IMSLP is a part of this larger group of sites, we should like for content to be able to be transferred between these sites (e.g., for recordings created by IMSLP users to be incorporable into Wikipedia). This has less of an effect on editions in particular, since these are less often directly imported into Wikimedia projects, but this issue does affect them to some extent as well.

The real problem, however, is that the Creative Commons Non-Commercial license is very ambiguous. While the other CC licenses have a pretty well-understood meaning, it is not clear exactly what constitutes non-commercial use for the purpose of the CC NC license. Creative Commons argues this is an advantage: "The definition is intent-based and intentionally flexible in recognition of the many possible factual situations and business models that may exist now or develop later." Here is an example list of uses, many of which are ambiguously compliant. It is our view (and the view of many of these other major free-content organizations) that ambiguity in licenses is a major flaw. The user of a material may in many cases have little confidence in what the actual terms of the license are.

Now, in your case, your uploads on here are editions of existing public-domain works. You comment "All my work is CC BY-NC for the purpose of copying the music. There are no performance restrictions at all on it." This is more or less accurate, though it would be the case even had you not stated it; new editions of public domain music cannot carry with them performance restrictions, since the performance is of the original (public domain) creative work; copyright licenses only apply to material insofar as much as it is the copyrightable work of the licensor. (Moreover, new editions may or may not qualify for copyright at all, depending on the jurisdiction, but that's another matter unrelated to CC licenses.)

Now, we can certainly understand that users do not want to have the items which they upload onto IMSLP for free to be used in order to generate profit for a republisher. However, we believe that, in practice, this is virtually entirely accomplished by the Creative Commons Attribution-Share Alike license. The CC BY-SA license does allow copies to be sold. However, it requires that all copies be marked with the proper attribution and acknowledgment of the CC BY-SA license. Moreover, all derivative works (adaptations) must be released according to the CC BY-SA terms as well. By marking the work with the CC BY-SA license, the work is marked as redistributable and freely shareable. While copies are allowed to be sold, any copy sold must be marked as freely copiable itself. This effectively prevents the vast majority of commercialization; since the work itself must always be marked as copiable, the existence of a free source of a copy (as well as the "copyleft" clause) prevents any real commercialization of the selling of copies.

This is very much the same principle in action with software under the GNU GPL. While it is perfectly legal to sell copies of GPL'd free software, they are very rarely in fact sold for a profit. To the small extent that they are sold at all, the cost of a copy is virtually always no more than the cost of the physical media onto which it is written.

In our estimation, very few CC BY-SA-licensed scores are actually offered for sale in the first place. The greater concern we have about the NC license relates to the distribution of scores in the course of their actual usage. For example, an ensemble wants to use a score for a performance. They have the score printed at a print shop. Is this "non-commercial," seeing that they are paying the print shop for the copies? This is not a mere hypothetical — there was a real case on this very question, where a provider of CC NC content sued a print shop for copyright infringement when a school ordered photocopies of the CC NC-licensed content from the print shop. Although in that case it was decided that the print shop did not violate the license by printing copies for a school, this hardly covers all similar scenarios and does not apply in other jurisdictions, which have interpreted this clause in different ways. This illustrates the reality of the problem in practice. This is not to say that you would necessarily go around suing people for bringing your PDF to a print shop, but it is a danger with the license.

Scores contributed to IMSLP will always remain available from IMSLP for free (as in gratuit). Any CC BY-SA score must remain free (as in libre) even if a specific copy is not offered for free (as in gratuit). The classic model of publishing is to sell copies of proprietary works protected by copyright law; because the user is not allowed to make copies (beyond fair-use exceptions), Because a CC BY-SA score cannot be made into a proprietary work, and all copies must be marked as copiable, there is really little to no commercial market for the work qua the work. 99.99% of CC BY-SA licensed works are never mass-printed in the first place, and are only ever special-ordered from print shops; those which are mass-printed cannot compete economically if they are sold for more than the cost of printing a copy, because people can always print it at home or at a print shop anyway for exactly that cost. (By the way, it has been argued by some that even the CC NC license allows selling copies for a fee, so long as this covers the cost of materials, though this is highly debatable.)

Meanwhile, because the CC licenses only allow usage on the basis of compliance with the terms, a copy or a derivative work of copyrighted CC BY-SA material which did not follow the requirements of release under CC BY-SA with attribution, license notice (indicating the freedom to copy, among other things), no addition of DRM, etc., would be subject to the same action as with any other infringement.

So the effect of the CC NC licenses, as opposed to CC BY-SA, is mostly to introduce incompatibility and significant legal ambiguities and difficulties with potential use, which create significant issues for potential users and incompatibility with other free-content repositories. But there is very little effect on the real-world commercialization of the work (as opposed to using CC BY-SA), because copies of CC BY-SA (when they are made, which is qute unusual to begin with) effectively cannot sell at a higher price than the real-world cost of printing (not to mention those who download will all do so for free, and many may never want to print out a copy at all).

In short: because copyleft in the form of CC BY-SA prevents proprietary reuse, which is well-defined, it prevents virtually all real-world profiting off of the content itself, while avoiding the real problems with the CC NC licenses and being compatible with all major free-content initiatives.

Now, you are not obliged to continue to post new items onto IMSLP — that is your prerogative — but I hope you will understand the reasoning behind this policy and the real-world implications of the use of CC BY-SA.

[agarvin]

I understand the arguments. I contribute to Wikipedia and other sources with a CC SA license. I write open-source code, and my favorite software licenses are BSD or Apache. License arguments are a famous holy war. But I'm committed to my music work being non-commercial. I embrace that myself: I've refused all donations, gifts, and recompense for the work I've done, which is a substantial part of my life the past 15 years. CC NC is not perfect for these purposes, which is why I've tried to make clear where I allow more than the strict license permits, but it's closest to my intents. For now, I will continue contributing to CPDL as long as they allow the license I prefer. You can have my work going forward after I pass away: I've made it clear in my will and elsewhere I don't want any copyright protections to persist after my death.

[DBMiller]

I understand the arguments. I contribute to Wikipedia and other sources with a CC SA license. I write open-source code, and my favorite software licenses are BSD or Apache. License arguments are a famous holy war.

That's very well, Now, I understand that there is some "holy war" aspect to license choice. I personally release most of what I make for public consumption under a public domain dedication (CC-Zero) — be they my musical editions, or, elsewhere, my photography. Nevertheless, I am not against people who make a different choice.

The problem with the CC NC license is not just that it is not what I would choose myself — though it happens that it isn't — but primarily that it suffers from the defect of great ambiguity (because it does not define what non-commercial use actually is). By contrast, the CC ND license — which we also no longer allow either, for different reasons — I will at least acknowledge is much clearer.

But I'm committed to my music work being non-commercial. I embrace that myself: I've refused all donations, gifts, and recompense for the work I've done, which is a substantial part of my life the past 15 years. CC NC is not perfect for these purposes, which is why I've tried to make clear where I allow more than the strict license permits, but it's closest to my intents.

I understand that you choose not to accept donations, gifts or compensation, but these choices are entirely separate from choosing to use the CC NC license. The CC NC license — and copyright licenses in general — only restrict the licensee, not the licensor. You could release your work under CC BY-SA and still refuse to accept donations, gifts or compensation. You in fact could also use any work of your own which you had licensed to the public under CC NC for commercial purposes, if you wanted to. In fact, the CC guide to interpretation of the NC license — and this was written by the organization that created it! — asks potential licensors to consider whether or not there is some proprietary commercial stream which they might want to protect — which is to say, the purpose of the CC NC license is to preserve as an exclusive and proprietary right the ability to have such a commercial use stream (though in what sense such a stream might exist depends on the work).

I understand you would not choose to commercialize your own work, but this is not in any way an effect of the CC NC license. The only thing which the CC NC license does is grant permission to others to use your work, subject to a few conditions and restrictions, most of which are clear, but one of which is not, because of the (apparently intentional) ambiguity of what is considered "primarily intended for or directed towards commercial advantage or monetary compensation."

As far as I know, the question of which uses are "non-commercial" has not really been clarified by anything you've said (although it's possible I've missed something you wrote somewhere). As far as I know, all you state is that the license does not restrict the performance of the works contained in your engravings — but you agree that these are public domain works which you have just re-engraved, and so a performance would not contain any material which might be copyrighted by you to begin with (assuming the user is in a jurisdiction where such scores/engravings themselves are or might be copyrightable).

For example, if you go through the list of ambiguous cases presented before, how could I determine which uses were compliant and which not? What is your intent to begin with? Are you trying to prevent print shops from being able to charge someone to print out one of your files, for instance? If you do not intend to restrict performance from your scores in any way — which you couldn't do, because they don't contain original compositions, but which, if you did, at least could be interpreted e.g., as disallowing charging tickets at concerts — then what concrete restriction do you intend to place on your scores through use of the NC clause?

(It's worth noting also that CC says of their licenses — including this one in particular —explicitly that explanations of what "non-commercial" means are not allowed so long as you are using their trademarked license name, under their policy for use of their trademarks, though their position on exactly what "clarifications" might count as having "the effect of limiting or further conditioning the permissions" is ambiguous with the CC NC license, because what the permissions are to begin with is left undefined.)

Anyway, what you do with your time is up to you, and you do have the right to license your own copyrightable works under a CC BY-NC license. What exact restrictions you intend to place on usage of your work, and whether or not the CC BY-NC license actually succeeds in placing those restrictions on users, are questions which still do not have clear answers — at least to me. But it is exactly because of ambiguities of this sort — and the impacts they may have on users of the materials, as in the Fedex case — that IMSLP has created this policy.

[bicinium]

Hi, I only just saw this. I recognize the issue because I too have struggled with the ambiguities of the NC licenses; I've used CC BY-SA-NC on some of my own compositions but with a note that explicitly voids the SA and NC for performances and recordings. Because otherwise, would an amateur ensemble not be allowed to program such a work unless the concert was free of charge? But I didn't consider that NC might also (ambiguously) prohibit such things as using a print shop. So I'm happy to use BY-SA going forward and will consider applying it to my previous submissions too. I still don't want republishers making unsuspecting users pay for copies in the mistaken belief that they'd be supporting me financially, but I can see how the SA clause - which makes the sheet music free to copy and redistribute - would mostly scare off such actors. That said, I wonder if adding a "Published on IMSLP" notice in the score itself would help clue people in to the fact that the music is available for free online; on the other hand, the republisher would probably be within rights to remove that notice.

I also agree that non-commercial licenses of all kinds are primarily used to protect the licensor's own exclusive right to commercialization instead of preventing it. IMSLP users who don't have a fully formed opinion on licensing and who would've chosen the proprietary NC or ND before might indeed choose the free culture licenses now, which makes things more convenient for everyone. So on the whole I think this is a positive change. I just worry that many won't be quite so willing, particularly with original compositions and arrangements, so instead of getting more fully free sheet music, we'll be getting less sort-of-free sheet music.

I'm reminded of the legendary language pedagogue Michel Thomas, who wanted his method to be free and was deathly afraid of it becoming the property of big businesses. But instead of releasing it under some kind of permissive license (Creative Commons was even established four years before his death), he restricted his material as much as possible in an attempt to keep the corporations away, and then his heirs sold it all to one of them. Tragic.

[DBMiller]

Hi, I only just saw this. I recognize the issue because I too have struggled with the ambiguities of the NC licenses; I've used CC BY-SA-NC on some of my own compositions but with a note that explicitly voids the SA and NC for performances and recordings. Because otherwise, would an amateur ensemble not be allowed to program such a work unless the concert was free of charge? But I didn't consider that NC might also (ambiguously) prohibit such things as using a print shop.

Would an amateur ensemble be able to charge admission for a concert for a work under a CC NC license? I'd think not. One thing that is clear — though I'll get to a way in which it's not clear in a moment — is that it doesn't matter whether the group itself is amateur or non-profit or anything like that — at least according to CC, anyway. (Obviously, this is putting aside any further rights you give them via your own license.) The question is whether the use of the work "primarily intended for or directed toward commercial advantage or monetary compensation." And this is a hard question! I could imagine an argument that a non-profit's concert could be described as not "primarily intended for or directed toward commercial advantage or monetary compensation," even if they charge for tickets, but I'd be far from confident in saying that a court would agree.

And this is putting aside the question of how these licenses could be interpreted around the world. In Germany, for instance, there was a case in which the "non-commercial" use permission was found to only apply to personal private use — notwithstanding the provisions allowing for performance, publication, etc. — and then later overturned by another court.

CC says "CC’s NonCommercial (NC) licenses prohibit uses that are “primarily intended for or directed toward commercial advantage or monetary compensation.” This is intended to capture the intention of the NC-using community without placing detailed restrictions that are either too broad or too narrow. [...] In CC's experience, it is usually relatively easy to determine whether a use is permitted, and known conflicts are relatively few considering the popularity of the NC licenses. However, there will always be uses that are challenging to categorize as commercial or noncommercial."

So I'm happy to use BY-SA going forward and will consider applying it to my previous submissions too.

If you would like any help changing the license details of existing submissions in bulk, leave me a message and I can help out, by the way.

I still don't want republishers making unsuspecting users pay for copies in the mistaken belief that they'd be supporting me financially, but I can see how the SA clause - which makes the sheet music free to copy and redistribute - would mostly scare off such actors.

I don't think very many publishers are interested in doing this. Physical reprint houses generally don't source their editions and works from IMSLP contributors — they are usually focused on reprinting famous old out-of-copyright works originally published by large publishing houses. And (as I've mentioned before), the SA license means that any sale that is made is really only going to be able to be made for the cost of supplies, rather than an actual profit off the material. This is the same as the kind of sale found to be allowed in the US court cases — the difference being that the NC license prohibits any sale other than this kind, whereas the SA license does allow it, but makes it an economic absurdity.

That said, I wonder if adding a "Published on IMSLP" notice in the score itself would help clue people in to the fact that the music is available for free online; on the other hand, the republisher would probably be within rights to remove that notice.

The CC BY-SA 4.0 license says:

If You Share the Licensed Material (including in modified form), You must [...] retain the following if it is supplied by the Licensor with the Licensed Material:

• identification of the creator(s) of the Licensed Material and any others designated to receive attribution, in any reasonable manner requested by the Licensor (including by pseudonym if designated);
• a copyright notice;
• a notice that refers to this Public License;
• a notice that refers to the disclaimer of warranties;
• a URI or hyperlink to the Licensed Material to the extent reasonably practicable;

So my understand is that if you request that the notice given specify that the original piece is available on IMSLP, they would be obliged to keep that in their notice.

I also agree that non-commercial licenses of all kinds are primarily used to protect the licensor's own exclusive right to commercialization instead of preventing it. IMSLP users who don't have a fully formed opinion on licensing and who would've chosen the proprietary NC or ND before might indeed choose the free culture licenses now, which makes things more convenient for everyone. So on the whole I think this is a positive change. I just worry that many won't be quite so willing, particularly with original compositions and arrangements, so instead of getting more fully free sheet music, we'll be getting less sort-of-free sheet music.

As you allude to in your Michel Thomas story, users who would choose an NC license may be driven by a fear of something which is very unlikely to happen — and they'd miss out on making works available in as useful a way as they could because of this. More than that, though, I find that there are some users who pick licenses seemingly randomly, and it is good to avoid presenting them with these options.

I have found that the vast majority of contributors who were previously submitting files under the NC or ND licenses are now using BY-SA. And this is a good thing — it means we are increasing our compatibility with other free-culture projects and offering files to our users under terms which are more legally reliable and unambiguous.

Our mandate here is really first and foremost to serve the users, after all. This is part of another reason why we don't accept these files — especially ND ones — they are just less useful to our users because of the restrictions placed on use of the work. Any file licensed under an ND license cannot really be used for very much at all — and this has caused confusion, e.g., with users submitting recordings of ND works, which isn't allowed by the license. If a person composes an original work and holds the copyright to it, then of course we're can't argue that that composer doesn't have the right to prevent anyone else from using the work (except via fair use or other exceptions). But it also takes time and money to host things on IMSLP, and we're not required to put our limited resources towards what is effectively free advertising for proprietary works.

(For typesets in particular, which in many cases probably don't have enough originality to create a new copyright at all in most non-UK countries, and for which performance could not generally be restricted anyway, despite some claims to the contrary, our reasons are doubly important — users have been led astray in some cases and confused about their rights to perform the original public-domain work!)

[agarvin]

Two days ago I made a correction to a previously uploaded score and parts (Marco Uccelini, Aria sopra la Bergamasca), and I've been informed this won't be allowed because of my licensing.

I do not intend to ever upload anything else here, but I have continued to make corrections to pieces uploaded in the past. Is this no longer allowed?

If it is not, is there any option to remove these pieces? I don't like having my work available with errors that cannot be highlighted or corrected.

[DBMiller]

The compositions for which you have "licensed" your scores are all in the public domain in any case, and in the vast majority of countries (with only a few exceptions), the act of re-engraving a piece is extremely unlikely to create any new copyright in any case. The "NC" licenses are harmful and have led to multiple lawsuits — and are thus disallowed for a very strong reason, but these licenses are themselves unlikely to actually be effective in all but a few countries for these particular files (being non-original works) in any case.

Your claim to "allow more than the strict license permits" with respect to the performance of the works is not relevant or effective anywhere, because you can't use a copyright license to restrict the performance of public domain material (which those compositions all are). Your refusing any donations, gifts or other compensation for music-related activity is fine, but also has nothing to do with your choice of license. But we cannot and will not allow for you to attach a tag to your work which leads others to believe (however incorrectly, as the case may be) that you can apply restrictions to these files. However, any license you have already granted remains valid (irrespective of any removal of non-removal of any file — by us or anyone else) — to whatever extent you may have a copyright in the first place.

Irrespective of all of that, you are not forced to submit anything to IMSLP. You are free to choose not to contribute. If you really do not want to share your files under an actual free license (without the legal problems that ensue with the "NC" licenses), you're not forced to do so. As you are experienced with open-source software, you know that open-source software distributions would not accept any submissions claimed to be licensed similarly — for similar reasons.

We have a goal here — and things which are not in line with that goal are not allowed on IMSLP. Dealing with the mess of pre-existing files which were uploaded in the past is an issue we are working on gradually; new files, however, require active maintenance for us to review and approve, and we are focused on items without problematic licensing.

DBM