Fancies and Facts about the Hyperion case
In 1999 the music editor, Lionel Sawkins, was approached by Jeffrey Skidmore, conductor of Ex Cathedra to prepare a programme of works by Michel-Richard de Lalande (1657-1726), favourite Court composer under Louis XIV and Louis XV. This followed their previous collaboration in a recording of Lalande motets on the ASV label in 1995. In 2001, the new programme was performed in two concerts in Birmingham and Paris, and recorded by Hyperion Records. Unfortunately, Skidmore failed to tell Hyperion Records that the editions were registered for copyright protection (just as those for the earlier recording had been) and a dispute arose days before the recording sessions, when Hyperion refused to recognise copyright inherent in the editions and issued the CD in defiance of notices issued by MCPS.

‘A music company fears it will lose £1 million and face closure if it loses its…legal battle’
Mr Perry of Hyperion has admitted in an interview with a US paper that attempts to settle the dispute before legal action were ignored by him as he ‘wanted to know whether I’m right or wrong. I’m afraid I’m wrong, according to the justice system.’ Hyperion’s decisions to let the matter go to court and then to appeal are theirs entirely and may owe more to a fear of action against them by some of the ‘dozens’ of people with whom they have admitted having had previous copyright disputes than anything Dr Sawkins has done to protect his rights.

‘a record company run on a frayed shoestring’
Hyperion’s accounts show a turnover of more than £3 million per annum, assets of £1.7 million and provision for liability for legal costs.

‘Sawkins was represented by Carter-Ruck on a ‘no win, no fee’ basis so the stakes weren’t quite as high for him [as for Hyperion]’
It was perfectly open to Hyperion to have sought out lawyers to work under a similar arrangement.

‘[the case] turns on tiny, not to say, esoteric, details.’
On the contrary, the judgment is based on the long-established law of copyright which protects the original work of (in this case) a music editor who has created a modern performing edition from a number of disparate and incomplete sources.

‘[the] purpose [of an editor of a piece of old music] is to rediscover, as near as possible’ the sound world of someone else’
Yes, but this is to some extent guesswork, and were the composer to reappear, he may well say, ‘that’s not what I intended’. Likewise, another editor may produce a quite different edition working from the same materials. Both editions would be original to their editors, and both would merit copyright protection. In this case, both sides agreed that the surviving 17th or 18th century manuscripts are unplayable as they stand and that somebody had to prepare performing editions that filled in the gaps, and supplied missing parts (in one work, two of the five orchestral parts were composed by Sawkins). Simon Perry of Hyperion admitted in Court that this is a very skilled job and it would take him ‘years and years and years’ to prepare such editions himself.

‘thousands of scholars will now claim millions of pounds in royalties…’
There may well be some whose extensive work has not been suitably respected and adequately rewarded, but each will have to justify a claim on the evidence of the actual work done. Many other editions may be based on perfectly clear source materials and may not merit copyright protection. It is a question of degree in each case.

‘We can’t be confident that works created centuries ago are permanently out of copyright’
Yes, we can, such original works are out of copyright, just as are Lalande’s in this case. But Dr. Sawkins did not claim copyright in Lalande’s music, he claimed copyright in his editions which incorporated new work ‘sufficiently original in terms of the skill and labour used to produce it’. Copyright has long protected editions of literary works (an edition of the Dead Sea Scrolls was cited  in this case, for example) and also musical ones. Two of the operas in the forthcoming Glyndebourne season, one by Mozart and one by Handel, are being performed from copyrighted editions, as the prospectus shows. But it is still open to someone else to produce their own editions based upon their own work, as long as they do not reproduce the editorial work of another editor already copyrighted.

‘Many baroque practitioners have rallied to Hyperion’s side, praising the label for bringing the past to light by reviving the likes of Lalande who…might never have been rediscovered’
On the other hand, Sawkins’s mailbag has included letters of support from music publishers, early music editors, musicians, academics and some of our most distinguished recording artists. It is Dr Sawkins, not Hyperion who, over the last 30 years has made available for the first time most of the major works of Lalande at present on CD on several other labels (one in 1990 won a Grand Prix du Disque), among his editions of some 40 previously-inaccessible major French Baroque works, including several operas, works that have since been performed by more than 60 performing groups worldwide. Record companies help diffuse and popularise music, but they could not make recordings without the music on the stands, which someone has to prepare. Up to 300 parts may be needed for a choral and orchestral recording of several works such as the CD in dispute, and their preparation is costly in terms of research and expert and detailed editing, not to mention printing and binding. Everyone else associated with a CD of early music is financially rewarded - the artists, the producer, the distributor, the company itself, the record shops - why not the person on whom the whole enterprise depends - the editor who has put the music on the stands? In any case, Dr Sawkins has been receiving royalties on seven recordings of his editions released by other record companies, some for as long as 25 years.

Editor’s Fees v. Hire Fees
Simon Perry of Hyperion admitted in Court that he knew as early as May 2000 that Dr Sawkins was editing the works for the recording and that he would need to agree a fee to be paid to the editor for his work. [No such fee was ever paid.] If a report in the Birmingham Post is to be believed, Hyperion claimed that ‘Dr Sawkins’ editorial amendments....warrant an editor’s fee only, and not copyright. Dr Sawkins was paid more than £1300 for this.’ In fact, the only payment Dr Sawkins ever received from Hyperion was £1278 for the hire fee for this material (in this case Dr Sawkins only charged approximately 40% of the going rate for the hire.) The Copyright Designs and Patents Act makes it quite clear that a hire fee does not include recording rights, which must be accounted to MCPS for copyright works. (Evidence to this effect was given in Court by the Chief Executive of the Music Publishers’ Association.)

Hyperion knew more than 18 months before the recording sessions that Dr Sawkins was preparing the scores for this recording and both Jeffrey Skidmore of Ex Cathedra and Hyperion had every opportunity to be aware of Dr Sawkins’s position in relation to copyright. A previous Ex Cathedra recording for the ASV label was listened to by Hyperion as evidence of a sufficient standard of performance by Ex Cathedra to accept them for their label. This former recording bears prominent copyright notices in relation to Dr Sawkins’s editions. Did they not notice them? Furthermore, Hyperion agreed with the then Administrator of Ex Cathedra that they would pay the editor an editing fee.

Copyright and expert opinion
Mr Justice Patten considered how an edition of old music qualifies or not for copyright protection. He had before him very extensive documentation submitted beforehand by both sides, and also heard expert witnesses (the late Dr Stanley Sadie on behalf of Dr Sawkins, Mr Guy Protheroe on behalf of Hyperion). After very searching cross-examination over six days of the litigants and their witnesses as well as the experts, the judge observed that ‘the question to whether the new work is sufficiently original in terms of the skill and labour used to produce it’ and he decided that in this case Dr Sawkins’s work met these criteria.

Among commentators who appear to misunderstand the meaning of ‘originality’ as defined in the Copyright Design and Patents Act is the composer John Rutter who has been quoted as suggesting that the Act was never designed to protect editors. One cannot help noticing that editions of non-copyright music edited by Mr Rutter himself (such as his version of César Franck’s Panis angelicus ) bear prominent copyright notices. For a legal view of Mr Rutter’s stance, see Richard Arnold QC on ‘What People Say’.

The search for a scapegoat for Hyperion’s troubles might be better directed towards Messrs Skidmore and Pulford, conductor and chairman respectively of Ex Cathedra, who, in the words of Mr Justice Patten, ‘really played both sides off to ensure the recording did proceed’.

Hyperion claim never to have paid royalties on editions of old music, but they do indeed pay royalties on the recording of Bryan Newbould’s reconstruction of Schubert’s 10th Symphony, published by Faber Music Ltd. If Hyperion can afford to pay in that case, as other companies do as a matter of course, why cannot Hyperion have paid the modest royalty due for Sawkins’s editions, and saved themselves this needless litigation?
© Copyright 2009 Lionel Sawkins
French Music Editions