[ARSCLIST] Hyperion Records Fails At Appeal, or the disease is spreading to the UK

[David Lewis <davlew@xxxxxxxxxxxx>]

HYPERION RECORDS FAILS AT APPEAL
Hyperion Records is very sorry to announce that it has lost its defence of
the copyright case brought against it by Dr Lionel Sawkins.

Dr Sawkins claimed musical copyright in four editions of the musical works
of Lalande. He lost at first instance in relation to the recording of one of
the pieces of music but won on the other three. Hyperion appealed with the
leave of the trial judge.

Hyperion's principal objection to the claim made by Dr Sawkins was its
contention that a performing edition does not amount to a new and
substantive musical work in its own right unless the performing edition is
original, in the sense that it amounts to a new musical work. Thus, Hyperion
contended that if an edition is an arrangement or interpretation of an
existing musical work then it may obtain copyright as an original musical
work. Dr Sawkins expressly made clear that he was not contending that his
editions were arrangements of Lalande's music.

Instead, Dr Sawkins made it clear that his intention was to faithfully
produce the music of Lalande in a modern performing edition. Hyperion argued
that an edition of Lalande's music that is a faithful reproduction of
Lalande's music cannot itself be an original musical work.

Hyperion contended that Dr Sawkins had produced a modern performing edition
and that the skill and labour that he had exerted in doing so gave him a
literary copyright in the text. It did not give Dr Sawkins a musical
copyright, as the sound was Lalande's.

In the lead judgment of the Court of Appeal, Lord Justice Mummery held that:
In my judgment, on the application of Walter -v- Lane to this case, the
effort, skill and time which the judge found Dr Sawkins spent in making the
3 performing editions were sufficient to satisfy the requirement that they
should be "original" works in the copyright sense. This is so even though a)
Dr Sawkins worked on the scores of existing musical works composed by
another person (Lalande); b) Lalande's works are out of copyright; and c) Dr
Sawkins had no intention of adding any new notes of music of his own (Para
36)

Lord Justice Mummery decided that "A work need only be 'original' in the
limited sense that the author originated it by his efforts rather than
slavishly copying it from the work produced by the efforts of another
person" (Para 31).

In relying on the decision in Walter -v- Lane, the Court of Appeal rejected
Hyperion's reliance on the House of Lords authority of Interlego -v- Tyco.
This case (which concerned a claim to copyright in a new technical drawing
for the lego brick) made it clear that even though a lot of skill was
required to copy the original technical drawing that did not mean that the
new drawing was original. By analogy, Hyperion contended that even though Dr
Sawkins had exercised a lot of skill in copying the music of Lalande into
the modern form (a textual process) that did not mean the resultant edition
was an original musical work.

Jacob J recognised the dichotomy between Walter -v- Lane and Interlego in
his judgment. His judgment recorded as follows:

I begin by recording the following cross examination of Dr Sawkins (in
relation to one of the editions):

Q: Can I just be clear this is not one of the pieces that you actually
claimed to have recomposed anything - there is no new music in Venite?

A: No, there is no new music. There are corrections to the musical text,
which you could argue are the same thing, but they are individual notes.

It is that answer - no new music - which lies at the heart of Hyperion's
objection. It was that answer which also caused me to pause.

He then held that Interlego could be resolved in the Court assessing the
"extent to which the 'copyist' is a mere copyist - merely performing an easy
mechanical function. The more that is so, the less is his contribution
likely to be seen as 'original'".

If this is how the law interprets copyright and 'originality', then Hyperion
must accept that the Sawkins editions are in copyright. The judgment means
that almost every edition of an out of copyright work will in fact have its
own musical copyright because the law will regard it as 'original'. This
will affect classical record companies and performers of classical music as
they will have to seek (and pay for) a licence before performing or
recording music from an edition.

The judgment also means that the threshold for copyright and 'originality'
is extremely low. Given that copyright subsists in every fixation of a
musical work, this will mean that each time a musical work is recorded, that
particular performance could be of an "original" musical work under UK
copyright law. This gives rise to the possibility of performers claiming
musical copyright in addition to performing rights - something the
legislators surely did not intend. 

The financial consequences for Hyperion are yet to be determined, but will
be severe. Although the damages recovery for Dr Sawkins is likely to be very
low indeed, the legal costs are likely to be very large. Dr Sawkins
instructed the law firm Carter Ruck on a conditional fee agreement and they
are likely to seek a success fee from Hyperion. This could be as much as
double the real legal costs and take the exposure to Dr Sawkins lawyers to
hundreds of thousands of pounds if not a million.

This leaves Hyperion in a very precarious position. The company is small and
operates independently of any financial support and survives solely on the
sales of classical recordings in an extremely competitive marketplace
flooded by cheap product. It is certain that the future return from sales
alone is not enough to cover its legal settlements and continue its mammoth
recording schedule.

Hyperion now is forced to reconsider its general recorded output and will be
reducing dramatically its commitment to many new recordings over the next
year or two to concentrate on fund-raising activities to help with the legal
costs and to keep a limited number of new recordings in its diary. The
collateral damage caused by this decision not only will affect the
prosperity of the company but also the dozens of artists and groups,
producers, engineers, composers, music publishers and musical editors but
most importantly the record buying public whose access to rare and
collectable repertoire served by Hyperion, and perhaps many of the other
record labels, will be severely diminished.

http://www2.hyperion-records.co.uk/

David N. Lewis
Assistant Classical Editor, All Music Guide
1168 Oak Valley Dr.
Ann Arbor, MI 48108

"Mankind will never know the essence of music in its reality and entirety.
Hail to the prophets!" -  Ferruccio Busoni, 1924

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