by: Alice Hao
Introduction
Just as a musical score is not the same as the composition it represents, a copyright claim over an editorial edition is not the same as a claim over the underlying work. Yet Canada’s Copyright Act draws little distinction between the two, leaving the legal status of modern editorial editions of public domain musical works unresolved.
This article proposes targeted clarifications to Canada’s Copyright Act to resolve this legal uncertainty. The classical music publishing industry relies heavily on modern scores, ranging from scholarly critical editions to interpretive performing versions whose underlying compositions have long since entered the public domain. While these editions involve substantial labour, their legal status under Canadian law remains ambiguous because the Copyright Act does not distinguish between an original musical work and a new score derived from a public domain composition.
To address this gap, the article proceeds as follows. Part I outlines the classical music publishing industry, distinguishing primary sources, scholarly or critical editions, and interpretive editions. Part II examines the Canadian Copyright Act and the originality standards from CCH Canadian Ltd. v. Law Society of Upper Canada and Théberge v. Galerie d’Art du Petit Champlain inc., revealing the absence of guidance on editorial editions. Part III analyses the problem of thin copyright, showing how scholarly fidelity conflicts with originality requirements and creates commercial incentives to add, rather than remove, editorial material. Part IV draws on comparative perspectives – the UK’s “aural realization” standard, the US ’modicum of creativity” test, and the EU Digital Single Market Directive – to identify lessons for Canadian reform. Part V proposes three legislative amendments to the current copyright framework: a definition of “editorial edition,” a distinction between musical “works” and “scores,” a higher originality standard requiring the editor’s own intellectual creation, and a safe harbour for faithful reproductions. The article will then conclude by summarizing the argument and reaffirming the need for statutory clarity to protect the public domain.
I. Classical Music Publishing Industry
The classical music publishing industry operates by producing and distributing written musical scores for use by performers, educators, scholars, and students. A significant portion of the repertoire performed and studied today was composed by musicians who died centuries ago, meaning the underlying compositions have long since entered the public domain. Despite the public domain status of the musical works themselves, the scores through which these works are accessed are almost invariably the product of modern editorial labour and are distributed commercially by specialized music publishers.
A musical score, as defined in a specialized context, refers to a manuscript or printed form of music where staves are linked by bar-lines to provide a visual representation of musical coordination. The scores produced by these publishers fall into several distinct categories, each reflecting a different editorial approach and purpose.
i. Primary Sources
At the foundational level are primary sources, which consist of versions of a score in which the composer was closely involved. An unpublished, usually handwritten score is classified as a manuscript; if it is in the composer’s own hand, it is specifically termed an autograph or holograph.1 Handwritten copies prepared by relatives, students, or professional copyists serve as critical secondary evidence of the work’s compositional history.2 Commercial printings are categorized as first editions when published in consultation with the composer, or as early editions if printed during the composer’s lifetime.3 To facilitate research while avoiding the physical degradation of fragile archival documents, publishers often produce facsimiles, which are high-quality photographic reproductions or scans of these primary sources.4
Figure 1. Franz Schubert’s autograph manuscript of Sonate II pour le Pianoforte et Violon, D 384, dated 18 March 1816, showing the composer’s original handwriting with no editorial additions. Library of Congress, Gertrude Clarke Whittall Foundation Collection.5
ii. Scholarly or Critical Editions
Scholarly or critical editions are commercial publications prepared by expert musicologists who evaluate and synthesize all available primary sources to create a definitive version that represents the composer’s true intention.6 A distinguishing feature of a true critical edition is the critical commentary (kritischer Bericht), a detailed technical document providing a measure-by-measure justification for every editorial intervention.7 Urtext editions represent a specific subset designed to provide a “pure” text stripped of centuries of interpretive “dirt” (Schmutz), though they may include scholarly reconstructions of lost portions of the original text.8 On a broader scale, collected editions (Gesamtausgabe) comprise multi-volume series dedicated to the complete output of a single composer, while historical editions (Denkmäler) focus on the musical heritage of specific geographical locations or periods.9
Figure 2. The same work as edited by Ferdinand David and published by CF Peters (Leipzig, ca 1882), showing editorial additions including dynamic markings, bowings, and performance indications absent from Schubert’s autograph. IMSLP No 11766.10
iii. Interpretive Editions
Interpretative editions document the specific stylistic, pedagogical, and expressive choices of a renowned performer or pedagogue.11 Unlike scholarly editions that strive for neutrality, these scores prioritize a living performance tradition by including unique fingerings, phrasing, bowings, and dynamic markings not found in the original primary sources12
This category also encompasses musical arrangements and transcriptions, defined as “the adaptation of a composition for a medium different from that for which it was originally written, in such a manner that the musical substance remains essentially unchanged.”13 For complex large-scale works, publishers frequently produce reductions, such as vocal scores, piano scores, or choral scores.14 These versions condense orchestral textures into a keyboard format, allowing soloists and choirs to rehearse without the necessity of a full ensemble.15 For academic use, publishers also produce study scores (or miniature scores), which utilize a smaller print format intended for individual reading and analysis rather than performance.16
Figure 3. Jacques Larocque’s 2012 arrangement of the same work for saxophone quartet (SATB), transposing Schubert’s original violin and piano writing for four instruments across different keys. IMSLP No 275974, licensed CC BY-NC 3.0.17
In a legal and commercial context, scores are often classified as derivative works when they involve editorial revisions, annotations, or other modifications that represent an original work of authorship.18 Specific original expressions found in modern arrangements or interpretive editions may be eligible for their own copyright protection despite the underlying composition being in the public domain.19 Publishers frequently categorize new versions of public domain works as “critical editions” to support claims of copyright protection, asserting that the scholarly labour required to correct notation or reconstruct missing passages constitutes sufficient skill and judgment.20 Consequently, while a complex orchestral arrangement or a highly idiosyncratic interpretive edition may secure protection as a derivative work, minor typographical corrections or the simple re‑engraving of public domain notation generally fail the threshold of originality.21 For a new edition to attract such protection in jurisdictions like Canada, the editor’s contribution must reflect an exercise of skill and judgment that is more than a “purely mechanical” exercise.22 In some European jurisdictions, scientific and critical editions attract a specific limited term of protection, typically ranging from 20 to 30 years from publication.23 However, the legal status of such editions in many countries still remains complex.
II. Canadian Copyright Act and Originality Standard
i. The Copyright Act
In Canada, the Copyright Act, RSC 1985, c C-42, is the primary federal statute governing copyright protection. The Act sets out foundational provisions establishing both what kinds of works are eligible for copyright protection and the conditions under which that protection arises. Two provisions are particularly relevant to understanding the issues this paper addresses: the statutory definition of “musical work” in section 2, and the subsistence conditions in section 5.
Section 2 of the Copyright Act defines a musical work and the broader category of protected works as follows:
musical work means any work of music or musical composition, with or without words, and includes any compilation thereof; (oeuvre musicale)
every original literary, dramatic, musical and artistic work includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as compilations, books, pamphlets and other writings, lectures, dramatic or dramatico-musical works, musical works, translations, illustrations, sketches and plastic works relative to geography, topography, architecture or science;24
These definitions are notably sparse. The first definition, “musical work”, encompasses any work of music or musical composition but does not distinguish between an original composition (“musical work”) and a new edition of a pre‑existing work (“musical score”). Nor does it address whether editorial additions to a public domain score, including reconstructed passages, performance markings, or corrected notation, are capable of constituting a new musical work in their own right. The second definition of “every original literary, dramatic, musical and artistic work” incorporates the word “original” without defining it, leaving open the question of what degree of originality is required for a work to qualify for protection.
Read together, these definitions reveal a gap at the core of the editorial editions problem: because the Act does not define where an edited score ends and a new musical work begins, and does not specify what “original” requires in this context, courts and the public are left without clear statutory guidance on whether modern editions of public domain works attract independent copyright protection. As will be argued below, this ambiguity creates conditions under which public domain musical works can be effectively re-privatized through editorial copyright claims.
Section 5(1)(a) of the Copyright Act sets out the threshold conditions for copyright to subsist in a work:
Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met: in the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country.25
Copyright protection arises in Canada where the author, at the time the work was made, was a citizen, subject, or ordinary resident of a treaty country – namely a party to the Berne Convention or another applicable international agreement – or where a published work was first published in such a country. As a practical matter, virtually every critical edition of a public domain musical score produced by a professional musicologist or publisher will satisfy these conditions without difficulty, given Canada’s broad treaty relationships. Section 5 therefore functions primarily as a gateway provision and does not itself resolve the more substantive question of how much copyright protection an editorial edition attracts once it clears that threshold. The more demanding analytical work is done not by section 5 but by the originality standard developed by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada.
ii. CCH Canadian Ltd. v. Law Society of Upper Canada
For copyright to subsist in a work, it must be “original” within the meaning of the Copyright Act. The Supreme Court of Canada addressed the meaning of originality in CCH Canadian Ltd. v. Law Society of Upper Canada, where the Court held:
For a work to be “original” within the meaning of the Copyright Act,it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique.26
This positions the Canadian originality standard between two extremes. A work that is nothing more than a direct copy of another attracts no protection, but a work need not achieve novelty or creative distinction to qualify. The Court then defined the two components of the standard:
What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work.27
The distinction between skill and judgment is significant. Skill refers to the technical capacity brought to the work: the practiced ability of an author in their field. Judgment refers to the evaluative dimension of the creative process: the choices made between available options. Both are required to determine whether a work is original. The Court further specified that this exercise must rise above a minimum threshold of intellectual engagement:
This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce “another” work would be too trivial to merit copyright protection as an “original” work.28
This statement addresses the lower boundary of the standard. A task that is merely a technical exercise of choice, such as selecting one font over another, is nonetheless too mechanical and too trivial to constitute the kind of skill and judgment the Court requires. The implication is that the exercise of skill and judgment must involve a meaningful engagement with the material, not merely a superficial or automatic decision.
The Court’s formulation establishes a standard that occupies a deliberate middle ground: a work need not be novel or unique; it is sufficient that the author exercised skill and judgment in its production, provided that exercise was not so trivial as to amount to a purely mechanical task. On one side, the Court explicitly rejected the lower “sweat of the brow” standard applied in some earlier Canadian and English cases, under which labour alone could ground a copyright claim. On the other hand, it equally rejected the higher American standard established in Feist Publications Inc. v. Rural Telephone Service Co., which requires a minimal degree of creativity.29 The skill and judgment standard is therefore distinctly Canadian: more demanding than pure effort, but less demanding than independent creative expression.
iii. Théberge v. Galerie d’Art du Petit Champlain inc.
The Supreme Court of Canada’s decision in Théberge v. Galerie d’Art du Petit Champlain inc. addresses the purpose and limits of copyright protection in Canada. Writing for the majority, Justice Binnie articulated the foundational balance that the Copyright Act is designed to maintain:
The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.30
That objective for copyright is not to act as an instrument of maximum protection for rights holders, but as a regime calibrated to serve two interests simultaneously: the private interest of the creator in obtaining a just reward, and the public interest in the broad dissemination of creative works. The Court then addressed the consequences of allowing that balance to tip too far in either direction:
The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them.31
The Court’s characterization of copyright as a limited economic right is important. Protection is not unlimited as it extends only as far as necessary to achieve the statute’s objectives. Beyond that point, the public interest prevails. The Court made explicit the consequence of allowing copyright protection to extend beyond those limits:
Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.32
The reference to the public domain in this passage is directly relevant to the context of editorial editions of public domain musical works. The Court cautioned against interpretations of copyright that extend protection beyond what is necessary, and as a result hinder the objective of the public domain. Where copyright protection attaches to editorial additions to a score whose underlying composition has already entered the public domain, the practical effect is to restrict access to that composition as it is most commonly encountered. Thin copyright claims over editorial editions therefore create precisely the practical obstacles to utilization that the Court identified as a consequence of excessive rights-holder control, and they do so with respect to material that the law has already determined should be freely available.
Whether such claims are valid under Canadian law and whether the existing originality standard is adequate to prevent them is the central doctrinal problem this article addresses. Whether the scholarly and technical labour involved in producing a critical edition of a public domain musical score constitutes the kind of skill and judgment CCH contemplates, or whether it falls below that threshold as a mechanical exercise of reconstruction, is a question Canadian courts have never conclusively answered in the context of musical works.
III. Thin Copyright and Re-Privatization of Public Domain Works
The threat of thin copyright in music publishing arises when publishers or musicologists assert copyright protection over editorial additions to works that have already entered the public domain. Where such claims succeed, historical scores may be effectively re‑privatized through the exercise of scholarly labour rather than independent creative authorship.
i. Nature of Editorial Labour in Critical Editions
Before the legal question of copyright protection can be assessed, it is necessary to understand what editorial labour in the production of a critical edition actually involves. As Philip Gossett has described, the preparation of a true critical edition requires that “the editor of a critical edition must know thoroughly the sources of the music he or she is editing and be sufficiently versed in principles of editorial theory in the humanities in general and in music in particular to know how to use those sources.”33 This involves systematic comparison of all surviving manuscript and printed sources, evaluation of their relative authority, resolution of contradictions and errors, and documentation of every editorial decision in a written critical commentary. Gossett identifies the critical commentary (the kritischer Bericht) as an essential and defining feature of a genuine critical edition, without which no edition can properly be called critical at all.34
Cristina Urchueguía highlights a fundamental structural tension in music editing: the dichotomy between the scholarly edition, designed for analytical study, and the practical edition, designed for performance use.35 These objectives impose conflicting demands on the editor. sWhile a scholarly edition transparently documents textual uncertainty and preserves ambiguous variants, a practical edition must provide a streamlined, performable text that allows musicians to play without navigating a complex scholarly apparatus. This tension is directly relevant to the copyright question because the editorial motivations behind decisions, such as selecting specific markings, documenting variants, and formatting the final score, demonstrate varying degrees of independent creative expression depending on the intended editorial purpose.
ii. Conflict of scholarship and originality
The fundamental paradox of scholarly musicology is that the more successful a researcher is at reconstructing a composer’s true intent, the less originality they may possess in the eyes of copyright law. This tension was articulated directly by Henry W. Lauterstein, general counsel of the Metropolitan Opera Association, in his foundational analysis of copyright in operatic critical editions:
The fact is that no original material is contained in a critical edition; indeed, as the publishers assert, the sole purpose of a critical edition is to present the orig-inal score as authored by the composer. This is the antithesis of authorship because the very purpose of the critical edition research is to preserve the original work of the composer without change.36
A critical edition is defined by its fidelity to the composer’s original intentions, which is precisely that fidelity which undermines any claim to independent authorship. The editor’s success, measured by the standards of musicological scholarship, is inversely proportional to the originality copyright law requires. The better the reconstruction, the less it can claim to be anything other than a faithful reproduction of the public domain work.
iii. Applying CCH Standard to Editorial Labour
The tension identified above is directly relevant to the originality standard established by the Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada. Under CCH, copyright subsists only where a work reflects the exercise of skill and judgment not so trivial as to amount to a purely mechanical exercise. While the research required to produce a critical edition involves substantial intellectual effort, that effort is characteristically directed toward the discovery and restoration of historical fact rather than the creation of new expressive content. Lauterstein quotes Nimmer to articulate the distinction between scholarly research and authorship as follows:
One who explores obscure archives and who finds and brings to the light of public knowledge little known facts or other public domain materials has undoubtedly performed a socially useful service, but such service in itself does not render the finder an “author.” To accord copyright protection on this basis alone distorts basic copyright principles in that it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of “writings” by “authors.”37
Under CCH, the skill and judgment standard was explicitly distinguished from the sweat of the brow doctrine, under which labour alone could ground a copyright claim. The musicologist who spends years cross-referencing manuscript sources has unquestionably expended effort. However, under CCH, that effort does not constitute the kind of independent creative expression copyright requires unless it is accompanied by the exercise of genuine evaluative judgment between available expressive options. Scholarly reconstruction with the object of recovering the composer’s original intentions is unlikely to satisfy that requirement.
The specific interventions most commonly made by editors further illustrate this problem. Laroche’s analysis of multiple editions of Frédéric Chopin’s “Raindrop Prelude” concludes that most editorial contributions fall below the threshold of originality required for copyright protection:
Given the requirement of a not inconsequential amount of originality in their contributions, editors who tweak only a few details here and there – as seen in the great majority of the scores consulted – would likely fail the test of copyrightability in a musical work, unless markings could be shown to have been independently derived by an editor.38
When editorial markings reflect standard professional practices or what Laroche describes as the “common stock” of musical knowledge, they represent choices that any competent musician in the field would naturally make, and therefore fall below the threshold of skill and judgment that CCH contemplates.39 Similarly, Laroche confirms that “simply re-engraving a public domain work, perhaps changing the font or size of the notation, should be viewed along the lines of a ‘purely mechanical reproduction’” and should not attract copyright protection.40 This conclusion follows directly from CCH, in which the Supreme Court cited the example of changing a font as an illustration of editorial activity too trivial to merit protection.
The question of where musical arrangements fit within this framework presents additional complexity. Roy Evans, writing on the copyright status of musical arrangements as derivative works, identifies a persistent gap between legislative intent and judicial application in this area, noting that courts have “exhibited much difficulty in applying the statutory requirements of copyright to musical arrangements” and that the level of originality required to sustain copyright protection in a derivative musical work remains inconsistently defined.41 While Evans’ analysis addresses arrangements rather than critical editions specifically, the underlying doctrinal problem is analogous: both involve the transformation or reproduction of pre-existing musical material, and in both cases the question of how much independent creative expression must be added to the pre-existing work to attract copyright protection remains unresolved with precision.
iv. Commercial Motivation of Thin Copyright Claims
The assertion of copyright over critical editions is not a natural consequence of the editorial process but a deliberate commercial strategy adopted in response to the expiry of existing copyright terms. Lauterstein traces this dynamic directly to the economic pressures faced by major music publishers as their traditional catalogues entered the public domain:
By the 1970s, copyrights in many of these works had expired, both in the United States and elsewhere. Some publishers, faced with the virtual loss of much of their property, cast about for ways to obtain copyright protection on works which had long ago entered the public domain. In an attempt to bolster flagging royalty revenues, certain publishers began to publish “critical editions.”42
Gossett acknowledges the economic realities from the publisher’s perspective, noting that the publication of full scores of major works in new critical editions, together with the preparation of performance material and distribution to institutions, “requires a large outlay of capital” that the sale of full scores “simply cannot begin to cover.”43 This economic context is significant not because it justifies the assertion of thin copyright claims, but because it explains the commercial pressure that produces them. The critical edition was deployed as a mechanism for extending private control over works that the law had already determined should be freely available.
v. The Perverse Incentive Problem
The commercial imperative to secure copyright protection in editorial editions produces a further distortion within the publishing industry. Because copyright rewards tangible visible expression on the page rather than the authenticity or scholarly value of the editorial process, publishers seeking to maximize protection have an economic incentive to add material to scores rather than to remove it. Laroche identifies this dynamic explicitly:
In order to benefit from copyright protection, “authenticity” in a new edition must be rooted in some tangibly visible creative act, as opposed to a destructive one. Music publishers seeking to guarantee copyrights in their scores therefore have an economic incentive to tilt the scale of “authenticity” ever higher toward adding things to a page, lest the photocopying of the fruits of their labour be permitted moments after a new release is placed on the market.44
This incentive operates directly contrary to the stated objectives of scholarly musicology. As Urchueguía’s analysis of the history of critical editing demonstrates, the urtext movement emerged precisely in reaction to the accumulation of unhistorical editorial markings in nineteenth-century practical editions, demanding a return to the sources and the removal of what Heinrich Schenker characterized as the editorial “dirt” that had been thrown over the original text.45 The legal incentive structure identified by Laroche runs in the opposite direction, rewarding the addition of material rather than its removal, and thereby creating a systemic tension between what copyright law incentivizes and what musicological scholarship requires.46
IV. Comparative Perspectives: International Guidance for Canadian Reform
This article turns to three comparative perspectives on the issue from the United Kingdom, the United States, and the European Union. Although these jurisdictions have reached different outcomes through different legal mechanisms, when assessed together, they can offer guidance for the potential reform of the Copyright Act regarding the protection of public domain musical works and the copyright status of editorial contributions.
i. The United Kingdom: The Aural Realization Standard
The United Kingdom’s treatment of editorial copyright in Sawkins v. Hyperion Records Ltd [2005] EWCA Civ 565 establishes a threshold for musical originality centred on audible variation and harmonic reconstruction. The decision addressed whether a musicologist’s performing editions of works by a long-deceased composer could attract copyright protection. The England and Wales Court of Appeal held that the substantial effort, skill, and time involved in creating the performing editions rendered them original musical works, notwithstanding that the underlying compositions were in the public domain.
As the trial judge found, and the Court of Appeal accepted, the process undertaken by Dr. Sawkins combined “the scholarship and knowledge derived from a long and detailed study of the composer’s music with a certain amount of artistic inventiveness.”47 Dr. Sawkins made a grand total of 3,000 editorial interventions across the four works, including the reconstruction of missing viola parts, the addition of figured bass notations, the correction of wrong notes, and the transcription of the scores into modern notation.48 Crucially, however, Dr Sawkins himself acknowledged under cross-examination that in the case of one of the contested works there was “no new music”, only “corrections to the musical text.”49
The Court differentiated between types of editorial intervention, granting copyright protection in respect of contributions that had sufficient “aural and musical significance,” while excluding those that did not substantially alter the musical realization of the work.50 Lord Justice Mummery held that it was “wrong in principle to single out the notes as uniquely significant for copyright purposes and to proceed to deny copyright to the other elements that make some contribution to the sound of the music when performed, such as performing indications, tempo and performance practice indicators, if they are the product of a person’s effort, skill and time.”51 Lord Justice Jacob, concurring, framed the applicable test as follows: “The question to ask in any case where the material produced is based on an existing score is whether the new work is sufficiently original in terms of the skill and labour used to produce it.”52
The judges were not uniform in their reasoning. Lord Justice Mummery grounded his conclusion in effort, skill, and time; Lord Justice Jacob placed greater emphasis on whether the work went beyond “mere servile copying”; and Lord Justice Mance agreed with both without adding further analysis.53 This internal disagreement reveals that the Court did not articulate a single consistent and principled basis for its decision, and that the line between protectable editorial expression and unprotectable scholarly reconstruction was not clearly drawn.
For Canadian reform, Sawkins illustrates the risk of leaving the copyright status of editorial editions to general originality doctrine unaided by specific legislative provision. Where a low or inconsistently applied threshold permits editorial labour alone to ground a copyright claim, works that have entered the public domain may be effectively re-privatized through the production of new editions, regardless of whether those editions contribute genuinely independent creative expression.
ii. The United States: The Modicum of Creativity Standard
The United States’ approach to originality, established by the Supreme Court in Feist Publications Inc. v. Rural Telephone Service Co., 499 US 340 (1991), requires a minimum degree of creativity as a prerequisite for copyright protection. The Court unanimously held that “the sine qua non of copyright is originality,” and that originality requires not merely labour or effort but some element of independent creative expression.54 The Court repudiated the sweat of the brow doctrine, under which the fruits of research could ground a copyright claim regardless of whether any creative expression was involved, holding that it extended copyright protection in a manner inconsistent with the constitutional basis for copyright in the United States.
In the specific context of musical editions, the holding in Norden v. Oliver Ditson Co., 13 F Supp 415 (D Mass 1936) reinforces this threshold. The court rejected a copyright claim for a public domain hymn in which the editor had made only “occasional changes in the length of certain notes,” characterizing such interventions as trivial variations and concluding that the adapted work remained, in substance, “the same old tune.”55 The court held that “a composition, to be the subject of a copyright, must have sufficient originality to make it a new work rather than a copy of the old, with minor changes which any skilled musician might make.”56 Applied to the critical editions context, these principles draw a clear distinction between the discovery of historical fact – however painstaking – and the authorship of new creative expression.
Applied to the Canadian context, the American framework offers a basis for refining the skill and judgment standard established in CCH Canadian Ltd v Law Society of Upper Canada. While CCH rejected mere labour as a basis for copyright, and equally rejected a creativity standard requiring novelty or uniqueness, the Feist line of authority suggests that a threshold which excludes purely mechanical or function-driven editorial interventions is both legally coherent and practically administrable. Incorporating a requirement that editorial additions constitute more than trivial variations on the underlying public domain work would assist Canadian courts in distinguishing protectable editorial expression from unprotectable scholarly reconstruction.
iii. The European Union: EU Digital Single Market Directive
The European Union has addressed the re-privatization of public domain works through Article 14 of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market, commonly referred to as the DSM Directive. This provision seeks to harmonize copyright protections while ensuring that works in the public domain remain accessible for cultural promotion and heritage. Article 14 provides:
When the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation.57
Recital 53 of the Directive states that:
In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage. In the digital environment, the protection of such reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works.58
Article 14 applies expressly to works of visual art and does not address musical works, manuscripts, or sheet music. The European Copyright Society, in its 2020 commentary on the provision’s implementation, noted that it would be advisable for national legislatures to extend equivalent protection to other categories of work, specifically including “documents, manuscripts and sheet music,” in order to avoid copyright notices being affixed to faithful reproductions of public domain material falling outside the provision’s express scope.59
Canadian policymakers could adapt this framework to address thin copyright claims over edited musical scores. Extending the faithful reproduction standard to include manuscripts and sheet music would provide a statutory basis for protecting non-commercial open-access repositories like IMSLP from the assertion of copyright claims over editions that do not meet the threshold of independent creative expression. This approach would affirm the public domain as a stable foundation for musical creativity rather than a resource subject to incremental recapture through editorial labour.
V. A Proposal for Copyright Policy Reform
The foregoing analysis reveals a clear legislative gap in Canadian copyright law. Canadian courts have never directly resolved whether and to what extent editorial additions to public domain musical scores attract independent copyright protection, and the Copyright Act itself provides no guidance specific to this context. The comparative experiences of the United Kingdom, the United States, and the European Union demonstrate that this is not a hypothetical problem but a live one with documented consequences for the accessibility of public domain musical works. The following four revisions to the Copyright Act are proposed to address this gap directly.
i. An Added Definition of “Editorial Edition”
Section 2 of the Copyright Act currently defines a “musical work” as “any work of music or musical composition, with or without words, and includes any compilation thereof.”60 This definition does not distinguish between an entirely original composition and a modern scholarly or republished edition of a work whose underlying composition has long since entered the public domain. The absence of any legislative recognition of this category of work means that questions about its copyright status must be resolved, if at all, by analogy to provisions designed for entirely different purposes.
This article proposes the introduction of a statutory definition of “editorial edition” in section 2 of the Copyright Act, to be defined as any edition of a musical work whose underlying composition is in the public domain, produced through the addition of editorial content including but not limited to reconstructed passages, performance markings, critical commentary, and notational corrections. Such a definition would provide a foundational category to which targeted originality standards and safe harbour provisions could be attached. It would also signal that Parliament has turned its mind to an area of practice that courts and repositories currently navigate without legislative guidance. By grounding the definition in the public domain status of the underlying composition rather than in the nature or extent of the editorial additions, the provision would capture the full range of editorial editions that exist while providing a stable and administrable boundary for the category.
ii. A Distinction between Musical “works” and “scores”
The language currently used in the Copyright Act does not accurately reflect the terminology prevalent in the music industry. The Act’s single defined category of “musical work” blurs two distinct concepts together: the musical composition itself, and the written document through which that composition is notated and transmitted. In common musical usage, a “work” refers to the creative intellectual content conceived by the composer: the melody, harmony, rhythm, and structure that constitute the composition. A “score” usually refers to the physical or digital notational document through which that work is represented, which may take many different forms across different editions, arrangements, and publications without altering the fundamental identity of the underlying composition. As demonstrated earlier in this article, the same underlying work can exist simultaneously as an autograph manuscript, a Peters performing edition, and a saxophone quartet arrangement.61 Each of these is a distinct document reflecting distinct editorial and creative choices, yet under the current Act, all three would be assessed under the same undefined category of “musical work.”
The second proposed amendment would introduce a statutory distinction between “work” and “score” into the Copyright Act. Introducing this distinction would allow the Act to treat these two concepts differently for copyright purposes, assigning full protection to original works while subjecting scores derived from public domain works to the higher originality standard proposed below. This distinction better reflects the reality of how musical works exist and circulate in practice.
iii. A Higher Standard of Originality for Editorial Editions
The current originality standard established by the Supreme Court of Canada in CCH Canadian Ltd v. Law Society of Upper Canada requires that a work originate from its author and reflect the exercise of skill and judgment not so trivial as to amount to a purely mechanical exercise. This standard does not adequately address the specific context of editorial editions of public domain scores because it does not distinguish between the kind of scholarly or technical labour that produces a faithful reconstruction and the kind of independent creative expression that copyright protection is designed to incentivize.
The consequences of this inadequacy are illustrated most clearly by the English Court of Appeal’s decision in Sawkins v. Hyperion Records Ltd, where a low originality threshold applied to editorial labour resulted in copyright protection attaching to performing editions of Baroque compositions that had been in the public domain for centuries. Canada has no equivalent precedent on this matter. Without legislative clarity, the outcome of any such claim before a Canadian court remains unpredictable.
The third proposed amendment would provide that an editorial edition of a public domain musical work attracts copyright protection only where the editorial additions constitute the author’s own intellectual creation. This would be determined by free and creative choices that go beyond faithful reconstruction, technical correction, or the application of established scholarly or performance practice. This formulation draws on the intellectual creation standard applied by the Court of Justice of the European Union and referenced in Article 14 of the DSM Directive, which requires that a work reflect the author’s personality through free and creative choices. It sets a meaningfully higher bar than the existing skill and judgment test without requiring novelty or aesthetic originality in any demanding sense. Importantly, it also provides a more principled basis for distinguishing between the types of editorial labour.
Under this standard, the four categories of editorial edition described in a Section I of this article would be treated as follows: A facsimile edition, which involves no editorial intervention beyond photographic or digital reproduction of a primary source, would attract no independent copyright protection. A urtext edition, whose stated purpose is faithful reconstruction of the composer’s original text, would not meet the higher originality threshold on the basis of its reconstructive editorial work alone, though original analytical commentary accompanying the edition may attract protection separately as a literary work. A critical edition, which involves both reconstructive editorial work and the production of an original critical apparatus documenting and analyzing source variants, may attract protection in its critical apparatus where that apparatus constitutes the author’s own intellectual creation, while the reconstructed score itself would not. A performing edition that incorporates genuinely inventive interpretive choices (fingerings, phrasings, or dynamic markings that reflect the independent artistic judgment of a named performer or editor) may attract protection in those additions where they can be shown to reflect free and creative choices rather than the application of conventional performance practice.
Conclusion
Like any musician who must distinguish the essential melody of a composer’s pen from the interpretive embellishments typeset by a musicologist, copyright law must find a clear distinction between original creation from later editions. Canada’s Copyright Act currently draws no such line in the context of editorial editions of public domain musical works, leaving their copyright status legally uncertain. This result is at odds with the balance the Supreme Court of Canada struck in Théberge v Galerie d’Art du Petit Champlain inc and with the originality standard established in CCH Canadian Ltd v Law Society of Upper Canada.
The research and analysis presented in this article has exposed a central paradox: the more faithfully an editor reconstructs a composer’s intentions, the less independent creative expression the resulting edition contains. Commercial incentives compound the problem, rewarding the accumulation of markings on a page rather than authenticity. Comparative jurisprudence from the United Kingdom, the United States, and the European Union confirms that absent legislative guidance, courts face the difficult decision to either overprotect scholarly labour as a surrogate for authorship or to deny protection to genuinely creative contributions altogether.
To resolve this, the article proposes three targeted amendments to the Copyright Act: a statutory definition of “editorial edition”; a clear distinction between musical “works” and “scores”; and a higher originality standard requiring the editor’s own intellectual creation. Together, these reforms would protect only genuinely inventive contributions while leaving the composer’s original work where it belongs: in the public domain, where the music is shared among all who wish to perform, study, and build upon it.
Bibliography
Canadian Legislation
Copyright Act, RSC 1985, c C-42
International Legislation
“Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, OJ”, L 130/92
Canadian Jurisprudence
CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13
Théberge v Galerie d’Art du Petit Champlain inc, 2002 SCC 34
International Jurisprudence
Feist Publications, Inc v Rural Telephone Service Co, Inc, 499 US 340 (1991).
Norden v Oliver Ditson Co, 13 F Supp 415 (D Mass 1936)
Hyperion Records Ltd v Sawkins, EWCA Civ 565, 1 WLR 3281.
Secondary Sources: Articles & Book Chapters
Evans, Roy, “Musical Arrangements: The Unprotected Intellectual Property” (1997) 5 Media L & Pol’y 23.
Gossett, Philip, “Critical Editions: Musicologists and Copyright” (2005) 52:3 Fontes Artis Musicae 139.
Laroche, Guillaume, “Settling the Score: Copyright in Modern Editions of Public Domain Musical Works” (2014) 26:1 Intellectual Property Journal 83.
Lauterstein, Henry W, “Copyright Concerns with Critical Editions of Operatic Scores” (1987) 5:4 Ent & Sports Law 3.
Scassa, Teresa, “Original Facts: Skill, Judgment, and the Public Domain” (2006) 51 McGill LJ 253.
Urchueguía, Cristina, “Critical Editing of Music and Interpretation: Critical Editions for Critical Musicians?” (2006) 16 Text 113.
Secondary Sources: Electronic Sources, Blogs & Reports
Dalhousie University Libraries, “Scores – Music – LibGuides” (1 April 2026), online: Dalhousie University Libraries.
European Copyright Society, “Comment of the European Copyright Society on the Implementation of Art. 14 of the Directive (EU) 2019/790 on Copyright in the Digital Single Market” (26 April 2020), online: European Copyright Society.
Syracuse University Libraries, “Types of Score Editions – Music Scores and Sheet Music – Research Guides” (2 March 2026), online: Syracuse University Libraries.
Secondary Sources: Images
Franz Schubert, “Sonate II pour le Pianoforte et Violon” (autograph manuscript, March 1816), Library of Congress, Gertrude Clarke Whittall Foundation Collection, online: Library of Congress.
Franz Schubert, “Sonatina in D Major, Op 137, No 1”, D 384, ed Ferdinand David (Leipzig: CF Peters, ca 1882) Plate 6626, reproduced from “International Music Score Library Project” (IMSLP), IMSLP No 11766, scanned by Mcroskell (14 August 2007), online: IMSLP.
Franz Schubert, “Sonatine Op 137 No 1”, D 384, arr Jacques Larocque for saxophone quartet SATB (Saint-Maurice, QC: Productions du Moliantegok, 2012) Moli 242101, reproduced from “International Music Score Library Project” (IMSLP), IMSLP No 275974, typeset by arranger (4 April 2013), online: IMSLP; licensed under Creative Commons Attribution-NonCommercial 3.0.