I too have been following this with interest but sitting it out. I'm only chiming in now because there has appeared in recent posts a confusion/mixing up of printed book (or sheet music) publishing copyright with the main earlier drift which was chiefly to do with mechanical sound or audio-visual recording copyright and the ensuing rights to arrangements "published" therefrom or therein. I'm not (mostly) going to go into the latter as it is already being dealt with well from both the technical/legal angle and the moral.
However, regarding publishing notations of tunes, where the actual material is already public domain (as with all demonstrably long-existing traditional material), typesetting, printing and selling it does not get the publisher any rights to the music itself or to performances played from that notation. It does, however, get them copyright to that actual typesetting - and since until very recently with computerised music fonts, typesetting and printing music was one of the most expensive and technically demanding forms of printing, publishers had good reason to seek a return on their investment and to protect their copyright. By way of example, the works of JS Bach or Mozart are long out of copyright, but if a publisher prints a new edition of one of those works, they have copyright on that particular edition in its printed form which they will rightly seek to protect from cheap reproduction by photocopy etc. What they can't do is stop someone else copying it out (save for any specific features that may differentiate it content-wise from other editions) and making a new typeset....... or charge them a royalty. Nor can they charge performance royalties as they can for "new" compositions.
Much the same pertains to O'Neills or Ceol Rince etc. If we photocopy and distribute pages from those volumes, we infringe the publishers copyright, but not if we re-write them by hand (and photocopy those scripts....) and certainly not if we play them, even with the book on a stand in front of us in public - that is irrelevant (as well as "untraditional"!). Having such collections available to us is a boon for sure, and I've never heard anyone suggest that having to pay a commercial rate to buy such is incompatible with the tradition nor that it represents an unreasonable restriction! (Of course, the new-fangled availlability of huge ABC tune collections free of such considerations on-line is undermining their status, but that's another story and not relevant here....) Anyone systematically transcribing e.g. Breathnach's collections into ABC and posting them on the internet is not infringing the copyright obtaining on the books, though they would be if they scanned the books and posted those scans, save in the small proportions permitted for normal illustrative purposes - but that copyright obtains in the printed image, not the music it notates.
I'd suspect O'Neill, Breathnach, Roche et al. (or at least their publishers) were quite commercially minded in publishing their collections, even if the actual collecting was done from love and enthusiasm for their research material and the culture it represents. I'm equally sure that, while they (or at least their publishers
) sought their dues from the profits from the sales of the books, none of the parties to the production of the books would or indeed
could have sought any kind of royalty from people performing from the notations in the books as the actual music was public domain. Where the publications included works by named or demonstrable composers, those composers could (and may have) sought suitable proportionate royalties for the inclusion of their tunes, though I suspect that, in the more modern cases at least, any such potential situations will have been dealt with by the collector or publisher seeking signed releases prior to inclusion and making due acknowledgement. Said composers could still, if they register(ed) themselves and their works appropriately, claim royalties from anyone performing or recording or publicly playing such recordings of their works. Performers of such performances/recordings can also claim performance royalties where a system for collection and distribution of such exists, plus any further royalty that their arrangement of the material may make them eligible for as "composers" if it is "published" and registered appropriately.
None of those last bits infringes the original composer's entitlement, nor can they properly entail a restriction of public domain material. Band X's arrangement and performance of
Dusty Windowsill can't stop Band Y doing their own, nor get them charged a fee or sued for doing so, but John Harling as composer could sue them both if they didn't seek permission to use the tune and pay any royalty or make any acknowledgment he agreed with them (unless he waived it); similarly, Band X playing and recording their setting of
O'Carolan's Concerto or
The Morning Dew (public domain material) can't affect Band Y or anyone else unless they clearly attempt to make an exact copy of that arrangement/performance - which would be difficult to prove with trad. material! No collection agency can legitimately charge anyone for playing those tunes regardless of Band X's registered copyright which is ONLY for their own arrangement and performance. The problems lie in misunderstanding (non-appreciation of the non-unique nature of traditional titles by officials accustomed to unique material) and maladministration, not in the actions of performers seeking to benefit as best they can from their performances and publications in assorted media. Grey Larsen did NOT (indeed
could not) copyright the actual traditional tunes he recorded or transcribed in his book! No court would uphold what the collection agency in question were attempting, though I'm well aware there is a whole other set of problems there!
