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.
Hyperionís 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 Lalandeís 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 ñv- 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 ìoriginalî 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) Lalandeís 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 ìA work need only be ëoriginalí 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 personî (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):He then held that Interlego could be resolved in the Court assessing the ìextent to which the ëcopyistí 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 ëoriginalíî.
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 objectionÖ It was that answer which also caused me to pause.
If this is how the law interprets copyright and ëoriginalityí, 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 ëoriginalí. 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 ëoriginalityí 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 returns 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.