HYPERION APPEAL SINKS

The Court of Appeal yesterday dismissed the appeal in Hyperion Records Ltd v Sawkins[2005] EWCA Civ 565.

At trial Mr Justice Patten held that recording company Hyperion had infringed Sawkins' copyright in modern performance editions of the works of the obscure long-dead (and therefore out of copyright) French composer Lalande (1657-1726). Sawkins, a musicologist, carried out lots of research into his works and created new performing editions by making corrections and additions to the notation necessary to make the music playable. He also added or amended figured bass lines and corrected wrong notes, without actually "re-composing" Lalande's music and contended that this was an application of his skill and labour which was entitled to copyright protection.

Hyperion, who produced a CD of music including recordings of performances using Sawkins' scores, was happy to pay a fee for providing the performing editions but refused to pay any royalties on the basis that an editor was not entitled to copyright in a performing edition of music that had fallen into the pulbic domain. Sawkins' claim that his performing editions were original musical works was accepted at trial and by the Court of Appeal.

According to the Court of Appeal, *

* the effort, skill and time which Sawkins spent in making the performing editions were sufficient to satisfy the requirement that they should be "original" works in the copyright sense, even though Sawkins worked on the scores of existing musical works that were out of copyright and had no intention of adding any new music of his own;

* Hyperion's defence that Sawkins' work was not "music" rested on an unduly narrow view of what constituted "music" for copyright purposes, since the subsistence of copyright involved an assessment of the whole work in which copyright was claimed;

Lalonde: jukebox idol at the time of Louis XIV and XV

* Hyperion's submissions ignored the fact that the totality of the sounds produced by the musicians was affected by the information inserted in the performing editions: the sound on the CD was not just that of the musicians playing music composed by Lalande.

* if copyright subsisted in the performing editions, the performers who used Sawkins' scores reproduced the overwhelming majority of the editorial interventions marked up by him in his scores. If this was done without his authorisation, it infringed his copyright whether or not the performers included any additional material was included by the performers.

* There was a breach of Sawkins' moral right to be known as the author of his work under s.77 of the Copyright, Designs and Patents Act 1988 because the CD did not identify Sawkins as the author of the performing editions.

The IPKat had no doubt that this appeal would fail and thinks the Court of Appeal have got it right. He also notes that, although Lord Justice Jacob was sitting, the other two judges also managed to make their voices heard (in Lord Justice Mummery's case quite substantially).

A more recent musical Lalonde here