The topic of copyright law has popped up a bit in relation to the PBEH. I wrote the following "primer" to help me understand the copyright issues involved and thought it might be helpful to others. I'm not a copyright specialist; I've only occasionally advised clients on copyright issues in my practice. So take this with a grain of salt. My source, BTW, is Goldstein on Copyright (Aspen Publisher 3d ed. 2005, 2008 supp.). PLEASE NOTE that this "primer" is for informational purposes only and is not intended to give legal advice as to any specific set of facts. If you rely on internet postings to conduct your legal affairs, may God have mercy on you, for the law will not.

***

Copyright law protects "works" that are: (1) original (2) expressions (rather than ideas) (3) embodied in a tangible medium.

A work is "original" if it (1) not copied from another work and (2) reflects a minimal level of creativity. "Original" does not mean "novel." It means "original to the author," as in, the author came up with it one his own and didn't copy it from some other work. Now, in practice, if you can show that your work is novel -- as in, no one ever did this before -- you've probably proven its originality. What if someone claims he never read or heard Ode on a Grecian Urn but just happened to write a poem by that name with identical words? That is technically possible, and if really happened that way, his work would be "original," but in practice, of course, we will not believe his claim and conclude that his work lacks originality.

A work is an "expression" if it is not an "idea." An "idea" is a concept ("A hymn about the Eucharist"), a solution ("A new scheme for organizing the Propers"), or a building-block of expression (the letter "A," the note "C," individual neumes, etc.) An "expression" is a particular elaboration on an idea. If an idea can pretty much be expressed only one way, the idea and the expression "merge" and that particular expression is not copyrightable.

A "derivative" work is a work based on a preexisting work that contributes "independent expression" to the preexisting work. E.g., I take the Salve Regina in plain chant mode 5 and write new lyrics set to the same melody about St. Michael, or I leave the words the same but change the melody significantly by adding or deleting some notes. I can claim copyright protection in my derivative work, but only in the original expression I have added to it.

***

Copyright infringement consists of the unauthorized copying of a copyrighted work, which copying constitutes an "improper appropriation."

Although we commonly say that a given work is "copyrighted," in fact, any given work has both protected and unprotected elements. So, again, "ideas" in a work, and expressions of ideas that are the only way to express those ideas, are NOT protected. All that is protected are "original" expressions. So quotations from another work are not protected.

In practice, the degree of copyright protection varies with the degree of originality in the work. Let's take "Good Christian Men, Rejoice!" Suppose I find a typesetting of it in a public domain book and I:

(1) re-typeset that particular song so that it looks exactly like the public domain setting. The work is an exact copy and therefore, by definition, not original and not copyrightable. You may photocopy my work with wild abandon.

(2) same as (1), but I print it in purple ink instead of black. The color choice is a "building-block" of expression and therefore an unprotected "idea." All that's left is an exact copy and is therefore not original and not copyrightable. You may photocopy my work with wild abandon.

(3) same as (2), but I change the text font to Rockwell. The color choice by itself, and the font choice by itself, are "building-blocks" of expression and therefore unprotected ideas. The other elements of the work are copied. But perhaphs, perhaps, the combination of this particular color and font scheme is minimally original. If so, then my work has minimal copyright protection in its peculiar layout: you may not photocopy my work and you may not typeset an identical setting using the same combination of font and colors. But you could typeset it in purple using Palatino, or in red using Rockwell, etc.

(4) same as (3), but I draw some pretty little angels around the corners of the pages. The pretty little angels are original. You can't copy them. With the addition of the pretty little angels, I think my peculiar layout is sufficiently "original" to have copyright protection, but again, the protection is minimal: no photocopying and no typesetting an exact replica. But you can do one in the same font with a different color and your own little angels.

(5) same as (4), but I change the words "Good Christian Men" to "Good Christian Friends." I think I have the same degree of copyright protection as in (4). I might, though I'm not sure, have protection in my specific change in the text. Fortunately, you don't have to worry about that because you think that change is an absurd example of PC run amok. You can't photocopy my work (why would you want to?), but you can of course re-typeset the hymn in a sensible font, in sensible colors, with the sensible public domain text restored, and distribute that with wild abandon.

***

The fourth scenario describes the problem the PBEH project is doing. All of these hymns are public domain, but they are by and large available only in the form of derivative works in hymnals whose particular layouts, accompaniments, or alterations to the public domain text, etc. are subject to some degree of copyright protection, such that one probably cannot legally just photocopy the pages and often won't want to. Hymn publishers do not have a legal monopoly on the original, public domain texts, but it doesn't matter as a practical matter because parishes have to buy their hymnals if they want to have these hymns in some easily useable format (unless they want to typeset them themselves, which is not practical).

That is, until now. The PBEH will make these public domain hymns available in at least one easily useable format: a PDF downloads that can quickly be turned into a customozed worship ordos or smaller, customized hymnals. And of course, the PBEH could also become a nice, relatively inexpensive hymnal available for purchase.

And for that, I salute Mr. Tucker, Mr. Jones, and whoever else is involved in this project!