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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.

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