Hyperion/ Sawkins
Copyright Dispute
Statement from Hyperion
In May 2004, Hyperion lost a copyright
dispute with Dr Lionel Sawkins, who
sued the company for breach of musical
copyright that he claimed to own in
his editions of the French Baroque composer
Michel-Richard de Lalande (1657–1726).
Hyperion had used those editions (having
paid the appropriate hire fee) in a
recording with Ex Cathedra titled ‘Music
for The Sun King’, issued in 2002. Hyperion
is appealing against the decision.
In
order to succeed in a claim to musical
copyright, Dr Sawkins has to demonstrate
that his editions are original musical
works. Fundamentally, Hyperion’s firm
view is that an edition of an existing
musical work that is a faithful reproduction
of Lalande’s music cannot itself be
an original musical work.
Hyperion
has never denied the labour involved
in producing an edition. This might
enable Dr Sawkins to claim a copyright
in the text of his editions as a literary
or typographical copyright. With such
a copyright, Dr Sawkins could prevent
someone else from copying his editions
without a licence and he could therefore
control the use of his editions and
demand an appropriate hire fee for their
use. As such, Dr Sawkins would receive
reward for his work.
What
Hyperion contests is the idea that an
edition of an existing musical work
which does not involve an impact on
the sound – an impact that would impart
a real value to a new edition over and
above that belonging to the original
musical work - should be seen as an
original musical work.
Hyperion
Records made the decision to appeal
because it felt that there were several
important issues that were not addressed
or properly understood in the original
case.
A
key musical issue that the decision
of the court did not seem fully to understand
involves the distinction between ‘the
realization of a figured bass’ and ‘the
figuring of a bass line’. Most specifically,
in relation to one of the musical works
- Venite Exultemus - Mr Justice
Patten found that "most of the
work relates to the figured bass … I
do not accept that changes or additions
to the figured bass are not capable
of adding qualitatively to the musical
work and I consider that [he] did therefore
acquire copyright in his version of
the Venite" (Judgment ¶67).
The figuring of a bass line is a shorthand
notation conveying the harmonies (already
defined by the other written instrumental
parts of the score) that a keyboard
player should play. The realization
of the figured bass involves writing
out these harmonies in full, specifying
precise keyboard registration, figuration
and any ornamentation (although these
are in practice only ever treated by
performers as editorial suggestions).
The Music Publishers’ Association has
provided guidelines on copyright and
identifies the industries understanding
on what level of musical work attracts
copyright. These guidelines state that
"the realization of figured bass
or provision of keyboard accompaniment
for performance" entitles the editor
to a 100% mechanical royalty. Realization
of a figured bass is a practice routinely
undertaken at sight by Baroque performers,
yet what Dr Sawkins has done does not
amount to this. Dr Sawkins added additional
figures to the bass line over and above
those already written in the source
material. He did not realize the figured
bass. The realization of this figured
bass still had to be undertaken by the
performers.
A
significant proportion of Dr Sawkins’s
editorial amendments were performance
indications such as phrasing and tempo
marks, which the MPA guidelines recognize
as warranting an editor’s fee only and
not copyright; there were also a number
of corrections of obvious textual errors
necessary to restore a plausible version
of the music as it appears in the manuscript
source(s). While obviously valuable
work, this is not in any way original
or creative.
Furthermore,
the decision overlooked a test case
put forward by Hyperion(Blacks -v- Murray,
1870) that was approved by the Privy
Council in a more recent leading case
(Interlego -v- Tyco, 1988). This concerned
literary copyright but the principles
are relevant. The judge in this case
held that:
"I
think it clear that it will not create
copyright in a new edition of a work,
of which the copyright has expired,
merely to make a few emendations of
the text, or to add a few unimportant
notes. To create a copyright by alterations
of the text, these must be extensive
and substantial, practically making
a new [work]. With regard to [footnotes],
in like manner, they must exhibit an
addition to the work which is not superficial
or colourable, but imparts to the book
a true and real value, over and above
that belonging to the text."
In
a wider sense, the inflexible procedures
of the MCPS (Mechanical-Copyright Protection
Society) have exacerbated this situation.
An issue as complex as this should not
be resolved in a court of law; there
should be a fairer system, overseen
by an independent and musically qualified
body, of assessing copyright claims.
John Rutter refers to a now-abandoned
Performing Right Society scheme whereby
the editions were scrutinized by a classification
committee and the extent of their creativity
assessed on a sliding scale from 1 to
12, and concludes that "This was
a fair and sensible way of recognizing
that copyright is a concept intended
to reward creativity, not scholarship
or diligence". This would also
get around the anomaly of an editor
claiming 100% copyright on an edition
of music where the original copyright
has expired, a claim that suggests that
the edition embodies music that is solely
theirs.
If
the first instance decision is allowed
to stand, the consequences for the recording
industry will be far-reaching. Publishers
will be able to exert copyright on a
whole swathe of editions which are currently
in the public domain, where they have
involved the labour of an editor but
no original creative music.
This
is contrary to the perception of copyright
law currently held by music publishers,
record companies and most editors themselves.
The
appeal will be heard on 15–18 March
2005 at the Appellate Courts in the
Royal Courts of Justice. Should Hyperion
lose, the financial liability will be
in the region of one million pounds.
This is a potentially crippling sum
for a company of Hyperion’s size (employing
twelve people) and is likely to threaten
the company’s position as a flagship
British enterprise on the international
music scene. At best, the consequences
will be a drastic reduction of the company’s
investment both in important recording
projects, including the promotion of
unjustly neglected repertoire, and in
prestigious artists, including the nurturing
of young British talent.
