Copyright in music editions
‘We must think of things as they are, not as they are said to be’
George Bernard Shaw
Recent copyright disputes have involved Hyperion Records (UK)
and Harmonia Mundi (France).
In the Hyperion case in May 2005, the Court of Appeal unanimously decided (www.bailii.org/ew/cases/EWCA/Civ/2005/565.html) in favour of editor Dr Lionel Sawkins in his action for copyright infringement against the record company, upholding Mr Justice Patten’s decision in the High Court 2004 (www.bailii.org/ew/cases/EWHC/Ch/2004/1530.html). In 2002, Hyperion Records had issued an unauthorised recording of four works by Michel-Richard de Lalande made by Ex Cathedra, Birmingham in 2001, in defiance of enforcement notices issued by MCPS, the rights organisation that collects recording royalties.
In the Harmonia Mundi case in January 2005, the three judges of the Tribunal de Grande Instance de Nanterre in Paris gave judgment in favour of Dr Lionel Sawkins in a long-running case where, in violation of two contracts signed in 1990, Harmonia Mundi infringed copyrights in two editions of Lalande motets prepared by Dr Lionel Sawkins for a recording. A film company, Cine-Mag Bodard and a tv company, SFP, were also found to have infringed the rights of Lionel Sawkins. All three companies were ordered to pay damages and costs, and decided not to appeal.
What People say…
‘Perry [Proprietor of Hyperion Records] added that he did have a chance to settle the suit with Sawkins out of court. "Through the whole pre-trial process, his law firm begged and pleaded with Hyperion to plead out of court," he said. "Just pay us our fees and pay him off,’ they said. I said, "I’m not doing that. I want to know whether I’m right or wrong. I’m afraid I’m wrong, according to the justice system."
Simon Perry quoted by Chris Pasles, Los Angeles Times, 26 March 2005
‘An edition offers a unique version of a composition or substantial new material that is not available elsewhere…that material is fully protected by copyright, and there is no question of its being in the Public Domain, regardless of the copyright status of the underlying work. Record companies, opera companies, educational institutions, religious institutions, routinely pay licence fees to use such editions…’
Christopher Johnson (Director, Music [USA], Oxford University Press)
quoted in Early Music, August 2005, p.543.
‘(The Hyperion judgment) is a win for early music and the music loving world.... It is just this sort of protection of editing that enables publishers to go to the expense of publishing music, composers to compose, record companies to issue recordings, composers to make a living, and scholars to take the time and labour to produce editions.’
NU (independent scholar, USA)
‘If the claim of Dr Sawkins to copyright in the performing editions were upheld, that would not prevent other musicologists, composers, performers or record companies from copying Lalande’s music directly or indirectly or from making fresh performing editions of their own. All that Dr Sawkins can prevent them from doing, without his consent, is taking the short cut of copying his performing editions in order to save themselves the trouble that he went to in order to produce them.’
Lord Justice Mummery (Appeal Court Judgment) (www.bailii.org/ew/cases/EWCA/Civ/2005/565.html)
‘The solution accords with a reasonable view of public policy – that the sort of work done by Dr Sawkins should be encouraged. It saves others the time and trouble of re-creation of near-lost works, but in no sense creates monopoly in them. If someone wants to use Dr Sawkins’ short cut, they need his permission.’
Lord Justice Jacob (Appeal Court Judgment)
‘Pour être éligible à la protection du droit d’auteur, une œuvre de l’esprit doit porter la marque de l’apport intellectuel et personnel de l’auteur, peu important son degré d’originalité…le travail intellectuel accompli par Lionel Sawkins a consisté à élaborer, à partir de sources disponibles lacunaires ou altérées, des partitions permettant de faire revivre les œuvres de Lalande par le biais d’apports personnels qui révèlent certes des compétences techniques mais supposent un véritable travail de création, puisque l’unique copie dont on dispose [du Dies irae de Lalande] date de 1739, soit d’une période bien postérieure à la mort de l’auteur…
…l’incorporation d’une œuvre musicale dans une œuvre audiovisuelle requiert l’autorisation du producteur de l’enregistrement utilisé mais également celui du titulaire de droits afférents aux œuvres musicales’.
Les trois Juges du Tribunal de Grande Instance de Nanterre
Jugement rendu le 19 janvier 2005
‘As a professional engraver and musicologist I completely support your standpoint and commend you for taking a stand on this issue. The ease of information dissemination today makes it more important than ever before that appropriate recognition is given to intellectual property and the expertise and effort of the individual creator. I am sorry that you had to endure the stress that accompanies such a legal battle but your victory has set a precedent that will protect the rights of musicologists, editors, arrangers and engravers for years to come. Thank you!’
email to Lionel Sawkins from GF, Amsterdam
‘I admire greatly your tenacity in refusing to be bullied by the record industry. I could not believe the number of articles before the Appeal started, I suppose to try and create a climate against you — but it didn’t work! More of your splendid work with Lalande and others of his time would be most welcome.’
letter to Lionel Sawkins from ME, Barrister-at-law, London
‘I am pleased for you that you had such a convincing victory after all you have had to go through, and, indeed, are still having to put up with. You were certainly courageous and absolutely right to have persisted with this.’
letter to Lionel Sawkins from TG, Barrister-at-law, London
‘Hyperion [was] lacking in the basic courtesy of just asking Dr Sawkins if/how they could use his edition — this is plain common courtesy that all civilised people extend to the intellectual work of others.’
NU (independent scholar, USA)
‘If a record company or publisher wishes to contend that royalties should be neglible or non-existent, for whatever reason, that is their prerogative. It is up to them to persuade the copyright holder of the strength of their case. What they cannot do, as a matter of law, is appropriate to themselves the rights — primarily of exploitation — which belong to the copyright holder.’
Neil Hoyle, Chief Executive, Incorporated Society of Musicians
(from a letter published in Classical Music, 13 August 2005, p. 37)
‘In my opinion the decision [of the Court of Appeal] is both correct and unsurprising. … The result is supported by a considerable body of case law both English and foreign, including the well known decision of the Israeli Supreme Court in the Dead Sea Scrolls case. … John Rutter says that a Pandora’s box has been opened. This implies that there is something revolutionary about the Court of Appeal’s decision. As I have already indicated, this is not the case. One of the examples John Rutter gives is the restoration of the Sistine Chapel frescoes. He is obviously unaware that an Italian court has already decided that, in an appropriate case, an art restorer can claim copyright in his restoration.’
Richard Arnold QC
(from a letter published in Classical Music, 13 August 2005, p.36
responding to a letter from John Rutter in the issue of 2 July 2005)
¬© Copyright 2009 Lionel Sawkins