Another angle on copyright

[David Ayers]

from Gramophone.co.uk:

Copyright royalties are due on editions of 18th century music, rules judge July 8 2004

An editor has won his claim against a record company to be paid copyright royalties on editions he prepared of the 18th century French composer Michel-Richard de Lalande.

In 2001 Hyperion Records recorded four Lalande works for a disc called Music for the Sun King, for which the academic Dr Lionel Sawkins prepared new editions of three pieces, and which also used an existing edition by him. The work included recreating viola parts of one work, and making 600 corrections (319 of which were his own) to the bass figuring of another, working from a number of manuscripts.

It has been Hyperion’s policy to not pay copyright royalties on out of copyright composers. According to a statement issued by the label, ‘Hyperion has always understood musical copyright to be about originality. We contended that the three editions did not involve any significant composition of new music and therefore were not original musical works.’

On July 1 Mr Justice Patten, a High Court judge, found that Sawkins’ work was sufficient to give him copyright. In his judgement, he said he did not think you could 'reject a claim to copyright in a new version of a musical work simply because the editorial composer has made no significant changes to the notes, whether by addition or correction... 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.’

‘I am delighted with the outcome which should fire a shot across the bows of record companies and ensure they recognise the rights of those who prepare thoroughly researched editions of early music,’ said Sawkins. ‘Too often in the past editors have been prepared to sacrifice their rights in order to see their edition of a long forgotten masterpiece recorded.’

The judge also found that Sawkins had told Hyperion prior to the disc being recorded and released that he expected to receive royalties.

Costs and damages are understood to be up to £500,000. The disc, which Hyperion has now deleted from its catalogue, had cost £32,438 to make, and had sold 3,358 copies, generating £14,646 revenue.

Hyperion was given leave to appeal, which it is planning to do.

Other record companies already take steps to avoid such a situation. For example, Naxos asks its artists to confirm that they are either not using a copyright edition or have received permission to do so without incurring copyright obligations.

Klaus Heymann, chairman of Naxos, said he thinks musicologists should be paid for their work, but questions what generates copyright. ‘What is essential is that standards for creation of a copyright must be very high. After all, is a musicologist who adds or completes a few bars worthy of being granted the same rights as Beethoven, Mozart, Stravinsky or Sibelius?’

‘The end result will be that a lot less of this material will be recorded because you can’t afford to pay mechanical copyright on some 17th or 18th century composition, because our business is only viable if only a certain percentage is in copyright, because the margins are just not there.’

Martin Cullingford, Gramophone News and Online Editor

[David Ayers]

The entire judgement, if you are interested, can be read here.

Sections 49 onward are of most interest.