Hyperion records lose copyright case

Hyperion records have lost a rather bizarre copyright case in the court of appeal in the UK. A Dr Sawkins claimed copyright in his creation of scores in the musical works of Michel-Richard de Lalande, music in the public domain. He even agreed in court that his rendition of the music was not original - he didn't claim to have composed anything but did make "a grand total of 3,000 editorial interventions in the 4 pieces" according to the court.

"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."

So a small record label is facing serious financial problems for infringing copyright in an out-of-copyright work because somebody who created a performing edition of that work was able to claim a copyright in it. Excuse me whilst I go and recite the entire works of Shakespeare, with 3000 personal edits by the sweat of my brow to "improve" them, into an audio tape and set up business suing Shakespeare "pirates"...

I guess I'm being a little unfair. From the court's decision (paras 12 and 13:

"The scores produced by Dr Sawkins were used by the orchestral and vocal performers at Hyperion's recording sessions. The recording of the combination of sounds produced by the ensemble's use of the scores of the performing editions is embodied in the CD. It was accepted that none of the original Lalande music could have been performed by the Ex Cathedra ensemble using only the extant earlier Lalande scores.

Hyperion's principal point is quite simply that the recordings on the CD were of performances of the music composed by Lalande. They were not recordings of music composed by Dr Sawkins. That is the basis of Hyperion's denial of any legal obligation to pay royalties to him for using the non-copyright music of a composer, who died nearly 280 years ago."

So the facts of the case make the line greyer than I painted and the court did, after all, side with Dr Sawkins. I was under the impression that "the sweat of the brow" was insufficient to secure copyright in a work. However, the amount of effort Dr Sawkins put into creating his performance editions of this music was considered to be sufficient in this case to satisfy the test of originality. In Lord Justice Jacob's words (starting at para 84):

" one is bound to have to consider whether what Dr Sawkins did involved enough to confer originality – did it go beyond mere servile copying? Patten J held that it did. He applied this test:

"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 (para.58)"
That seems to me to be exactly right. Of course the test involves a question of degree – mere photocopying or merely changing the key would not be enough. But a high degree of skill and labour was involved. This must be considered as a whole – it would not be right to look at each contribution and say "that is not enough" and conclude that the same goes for the whole. Dr Sawkins started by choosing which original manuscript(s) to use (actually he used mainly 2 out of 4, using one to correct ambiguities in the other), he checked every note and supplied 27 "corrections" (i.e. his personal evaluation as to what note Lalande really intended), supplied many suggestions for the figured bass, and put the whole into modern notation. This was not mere servile copying. It had the practical value (unchallenged) of making the work playable. He re-created Lalande's work using a considerable amount of personal judgment. His re-creative work was such as to create something really new using his own original (not merely copied) work."

It's a tough case and having read the full judgement I now have some sympathy with both parties but I'm not really any clearer on where the originality line should come.