(Note: This post has been updated (1) as of 1:02 PM Eastern on 24 May. See below.)
I last week read a blurb on the Gramophone classical music website concerning a British appellate court victory by a musicologist, a Dr. Lionel Sawkins, in a lawsuit instituted originally by him against Hyperion Records, a classical music label, for copyright infringement involving a CD produced by Hyperion which used four editions of scores of the music of French Baroque composer, Michel-Richard de Lalande (1657-1726) edited by Dr. Sawkins, and didn't give the matter too much thought, nor consider it more than an interesting oddity, and that only because the players in the case were not your usual suspects almost all of whom are typically pop-music types involved in the biz in one capacity or another.
Then I read blogger Pliable of On An Overgrown Path responding to the news on his blog with sympathy and some concern in behalf of Hyperion. Then this more temperate response to the news from blogger and musicologist Charles T. Downey on his blog, Ionarts, also expressing sympathy and concern for Hyperion, and finally this from Alex Ross on his blog, The Rest Is Noise, echoing the sympathy and concern for Hyperion, and roundly criticizing Dr. Sawkins and the decision in his favor.
It then struck me, clever fellow that I am, that I was perhaps missing something interesting and important about this case that I ought not to have missed, and so followed a link in Charles's post to the text of the Judgment in the original lawsuit, also won by Dr. Sawkins (it was, of course, Hyperion who subsequently brought the appeal before the appellate court), and saw that the case was indeed interesting, but the decision hardly one to elicit sympathy and concern for Hyperion Records as, to my way of thinking after reading the facts of the case, Hyperion had brought this entire thing down on its own head by its own corporation-think stupidity, small a corporation though it is, with a little unsolicited assist from the double-dealing interference of a certain Mr. John Pulford, chairman and a non-executive director of Ex Cathedra, the choral and orchestral group that performed the four Sawkins-edited Lalande works on the copyright-infringing CD.
In the light of reading the original Judgment, I saw in the above-linked responses of all three bloggers certain misunderstandings concerning the Judgment in this case, but was determined to stay out of it on this blog as I figured my limited time here would be better spent (and lots more fun) writing on aspects of Bach, Mozart, and Wagner, and beating up on Eurotrash types and pop-culture sympathizers, than in getting involved with writing about music-biz legal and business matters to the extent I'm competent to write of either (I've not been a businessman for ages, and have never been a lawyer, but am fairly familiar with the general principles of copyright law). I was, however, moved to eMail a very brief note to Alex suggesting that if he'd not already done so, he read the original Judgment in this case in its entirety before posting anything further on the matter. Alex assured me he had read the entire document, which then brought an exchange of several more eMails which resulted in this post by Alex which noted my eMail promise to expand on this blog a bit more on the matter of copyright.
So...
Perhaps the most important single thing to understand about any copyright case is that the term, "original work", which term in copyright law refers to a legal test of a work in determining whether that work is capable of securing copyright, does not mean the same in copyright law as it means in the practical-world. The court of origin judge in the case at issue provided in his Judgment a fairly thorough treatment of just what constitutes an original musical work in British copyright law as his job in this case was centrally twofold: 1) to determine whether Dr. Sawkins's editions of the four Lalande pieces in question met the statutory test of original musical work within its meaning in British copyright law, and were therefore capable of securing copyright; and 2) to determine whether Hyperion infringed any copyright thereby secured by Dr. Sawkins in those editions by Hyperion's recording and producing the CD in question as was alleged in the court action brought by Dr. Sawkins.
As the Judgment noted, "The amount of skill and labour necessary to establish a copyright is not very large and is often expressed in negative terms ('not insubstantial'). Nor need it involve inventive thought, although the use of inventive thought is obviously likely to confirm the originality of the work." In determining whether a work meets the statutory test of originality, "[t]he 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," and is not merely an updated copy of the existing score irrespective of how much skill and labor may have been used to produce that copy. On this test, three of the four Lalande editions produced by Dr. Sawkins and used by Hyperion met the statutory test of originality within the meaning of the term in British copyright law, and so were deemed to have acquired protected copyright status. Once that key legal question was decided in Dr. Sawkins's favor, it was a veritable tiptoe through the tulips to establish that Hyperion had infringed the copyright in those three editions by producing the CD in question.
This test of originality would, of course, be considered, and be considered rightly, by any musician in the practical world to be perfectly imbecile. But such practical-world objections are entirely moot in the matter of the determination of the capability of a work to secure copyright as that's a legal matter exclusively, having to do only with making a determination of whether the work in question is original within the meaning of the term in copyright law, and is not at all concerned with making a determination of the work's aesthetic worth, unique creativity, or other such matters of art. As the Judgment, citing analogous but non-musical precedent cases, noted:
To secure copyright for [a] product [in our present case, that would be the Sawkins editions] it is necessary that labour, skill and capital should have been expended sufficiently to impart to the product some quality or character which the raw material [in our present case, that would be the extant Lalande mss and scores] did not possess, and which differentiates the product from the raw material.
and,
The word "original" does not ... mean that the [new] work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought .... The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but [merely] that [it] must not be copied from another work - that it should originate from the [new] author.
And by such reasoning is the originality of a work determined in British copyright law for the purpose of securing copyright protection.
Alex, in this post, posits a hypothetical literary case:
Suppose a certifiably authentic new Shakespeare play is discovered. The text is mostly intact, but it's water-damaged in a few places, and some lines need to be guessed at. Perhaps large parts of it use some kind of shorthand which must be deciphered, but once the method is figured out it's all perfectly clear. Perhaps parts of the play were scattered all over the globe and it took a scholar many years to assemble them. When it's all put together, ... it's a ragingly magnificent tragedy on the level of Hamlet....
and then asks the question:
[W]ould the scholar [then] dare to claim copyright?
Alex guesses the scholar wouldn't because the play is certifiably written by Shakespeare. But, applying the above principles of British copyright law, the scholar would have to be an idiot to not secure, then claim and enforce copyright status for his work; copyright to which, as a matter of law, his work would be entitled.
And, finally, on the matter of a copyright owner being referred to as the work's "author", that's nothing to get riled up about as it's merely a legal designator, and in the case of an edition of an existing work, refers only to the "authorship" of the copyright edition, not the underlying original work.
Update (1:02 PM Eastern on 24 May): Alex Ross, his busy schedule notwithstanding, has entirely too much time on his hands.
On The Road To Prohibition
