![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hyperion Records Ltd v Sawkins [2005] EWCA Civ 565 (19 May 2005) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2005/565.html Cite as: [2005] WLR 3281, [2005] EWCA Civ 565, [2005] 3 All ER 636, [2005] 1 WLR 3281 |
[New search] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2005] 1 WLR 3281] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
MR JUSTICE PATTEN
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE MANCE
and
LORD JUSTICE JACOB
____________________
HYPERION RECORDS LIMITED |
Appellant |
|
- and - |
||
DR LIONEL SAWKINS |
Respondent |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR RICHARD ARNOLD QC & MR ANDREW NORRIS (instructed by Messrs Peter Carter-Ruck & Partners) for the Respondent
____________________
Crown Copyright ©
Lord Justice Mummery :
Introduction
The appeal
Performing editions of Lalande
(1)Te Deum Laudamus (S32) This dates from 1684. Lalande later reduced its length and revised it. Dr Sawkins added a figured bass line. He made 1,139 corrections and additions to the notation necessary to make the music playable;
(2) La Grande Pie`ce Royale (S161) This orchestral piece dates from about 1695. It was published in a Paillard edition in 1964. Dr Sawkins re-created missing viola parts in respect of 153 of Lalande's 268 bars;
(3) Venite, Exultemus (S58) This dates from 1701. Dr Sawkins corrected 27 wrong notes. He made changes or additions to the figured bass (figuring for the basse-continue);
(4) Sacris Solemniis (S74) Only the 6th movement (Panis Angelicus) was included in the sound recording on the CD. As there was very limited editorial input by Dr Sawkins and his performing edition was not substantially copied on the CD, the judge held that no infringement had occurred. I say no more about it in this judgment.
The Hyperion CD
Subsistence of copyright
" ..a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music."
The performing editions
"20. .the process of editing undertaken by Dr Sawkins combines the scholarship and knowledge derived from a long and detailed study of the composer's music with a certain amount of artistic inventiveness."
"63. There can be no doubt that Dr Sawkins has applied considerable skill and labour to the task of editing the four editions under consideration, based on his own expertise in respect of Lalande. The work was laborious and painstaking and extended over a considerable period of time."
A. Te Deum Laudamus (1684) ( paragraphs 32 37 of the judgment)
Dr Sawkins made necessary corrections and additions to the notation to make the music playable (see paragraph 65). The corrections and re-compositions totalled 141. He added figuring to the bass line. The construction of a figured bass accounted for 672 of 1,139 corrections to the score, either by correcting mistakes or enhancing the performers' comprehension of the chords to be played by adding extra figures. 319 of these were his own interventions. They were not derived from other source materials. Ornamentation in the form of trills on notes was also added.
B. La Grande Piece Royale (1695-Paillard edition 1964) (paragraphs 23-31 of the judgment)
This orchestral suite in 6 linked movements was derived from 4 sources. Dr Sawkins re-created viola parts for passages of it that were missing. This took up 153 bars of the work's 268 bars. It was the bulk of the work done by Dr Sawkins. There were also 34 editorial interventions. Patten J found (paragraph 64) that Dr Sawkins had made the music playable by transposing from the source material the common notation and, where necessary, had corrected it. Hyperion now accepts that the viola part is a significant re-composition and that it is music in which copyright can subsist, but submits that it was copied from the Paillard edition and that Dr Sawkins has no copyright in it. The judge held, however, that Dr Sawkins did not consciously or unconsciously copy from the Paillard edition (paragraph 31). I shall return to this point later in the judgment.
C. Venite Exultemus (1701) (paragraphs 43-47 of the judgment)
This is a large scale choral and orchestral piece in 8 movements. It lasts for 26 minutes. Dr Sawkins derived it from various scores and from editions by Cauvin in 1715 and Hue 1729-34. Most of the work done by Dr Sawkins was in adding the figured bass. The changes and additions also included the correction of 27 wrong notes and re-composition of the text. There were 659 corrections to figured bass. 134 of them were not derived from any of the sources, such as Hue. He made a total of 747 interventions.
Principles of copyright law
A. Originality
B. Music
The figured bass
"14. Basse-continue (meaning continuous bass) is, as Mr Guy Protheroe, the defendant's expert, explained, a feature of most music of the baroque period. It consists of a bass line only, which is to be played on instruments such as the cello, viola de gamba, double-bass or bassoon. Another chord-playing instrument such as an organ or harpsichord also plays the bass line, but adds the chords above it, which are drawn from and match the music in the lines above. In order to save the player from having to read all the orchestral parts to work out what chords to play, composers developed what came to be described as a figured bass. This involved placing figures either above or below the notes in the bass line, although the modern practice (followed by Dr Sawkins) is to place them below. Where there is no figure under a note, the convention is that this denotes the most common chord, which Mr Protheroe describes as a root-position chord; i.e a triad with a root note, the third above and the fifth above. When (for example) the figure 6 appears, this means that instead of the top of the chord being the fifth note, it is to be the sixth.
15. Dr Sawkins said that he derived most of the figuring from other sources, where it was correct and compatible with the full score. Both Dr Sawkins and Mr Protheroe were agreed that the figured bass is intended to give the chord-player guidance, but not to provide what may be described as a complete and inflexible code. The figuring does not always tell the keyboard player what is the complete chord and Dr Sawkins' practice in producing the editions was to reproduce what he described as the minimum possible in order to avoid accidents. It acts in effect as a shorthand for reading the other orchestral and voice parts above the bass line and for playing the harmonies. The performer still has to use his own skill and experience to play what he considers to be the appropriate notes, but Dr Sawkins accepted that this was a skill which nowadays is usual in the case of anyone who is adept or experienced at playing baroque music. One way of assisting the keyboard player is to fully realise the figured bass, and in earlier editions that was occasionally done. But both Dr Sawkins and the experts told me that the practice is now very rare, largely because of the increase in the number of skilled players of baroque music. A fully realised figured bass is also restrictive, and most experienced players prefer to realise the figured bass themselves during performance. Dr Sawkins said that the aim of a modern editor is usually, even when providing a realisation of the figured bass, to give the simplest possible realisation and not to write in what he described as a lot of fancy detail. In the case of the editions which are the subject-matter of this claim, no attempt was made by Dr Sawkins to realise the figured bass at all. This was in contrast, for example to the Paillard edition of La Grande Piece Royale , where there is a full realisation of the figured bass line. The inclusion of the figuring without any realisation leaves the keyboard player with a considerable amount of freedom to play what he considers to be tasteful and useful. These were the adjectives used by Dr Sawkins. In the present case this is what in fact happened during the recording session. It is evident from the score used by the basse-continue player (Dr Ponsford) that he has added his own figuring in a number of places to that provided on Dr Sawkins' edition. Dr Sawkins said that a lot of what Dr Ponsford had added was not strictly necessary in order to read the music, but simply acted as an aide-memoire to ensure that during the recording session he did not accidentally play the wrong chord."
Conclusion on subsistence
"unless the edition includes the composition of new music in the form of the notes on the score (and not merely the correction of wrong or unsatisfactory notes in the scores used) then no copyright would exist in the edition as a musical work."
" the real issue which divides the parties is whether a musical work includes items such as the figuring of the bass, ornamentation and performance directions or is really limited for copyright purposes to the notes on the score, so that in the case of an existing work nothing less than significant rearrangement of, or significant additions to, the melody will create a new copyright in the edition of a musical work."
Other matters
A. Infringement of copyright
B. Originality of La Grande Piece Royale
C. Moral rights
Result
Lord Justice Mance:
Lord Justice Jacob:
"1 Copyright and copyright works
(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work
(a) original literary, dramatic, musical or artistic works,
3 Literary, dramatic and musical works
(1) In this Part
"musical work" means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.
9 Authorship of work
(1) In this Part "author", in relation to a work, means the person who creates it."
"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."
"Take the simplest case of artistic copyright, a painting or photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an 'original' artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality."
"However, whilst the remarks made in Interlego may be valid if confined to the subject matter then before the Privy Council, they are stated too widely. The Privy Council was there considering fairly simple technical drawings. This is a rather special subject-matter. While the drawing of such a work is more laborious than it looks, it is a fact that any competent draftsman (perhaps, any conscientious amateur) who sets out to reproduce it exactly will almost certainly succeed in the end, because of the mathematical precision of the lines and measurements. This should be contrasted with, eg a painting by Vermeer, where it will be obvious that very few persons, if any, are capable of making an exact replica. Now, assume a number of persons do set out to copy such a painting, each according to his own personal skill. Most will only succeed in making something which all too obviously differs from the original some of them embarrassingly so. They will get a copyright seeing that in each instance the end result does not differ from the original yet it took a measure of skill and labour to produce. If, however, one of these renders the original with all the skill and precision of a Salvador Dali, is he to be denied a copyright where a mere dauber is not? The difference between the two cases (technical drawing and old master painting) is that in the latter there is room for individual interpretation even where faithful replication is sought to be attempted while in the former there is not. Further, a photographer who carefully took a photograph of an original painting might get a copyright and, if this is so, it is rather hard to see why a copy of the same degree of fidelity, if rendered by an artist of the calibre aforementioned, would not be copyright. These considerations suggest that the proposition under discussion is suspect. It is therefore submitted that, for example, a picture restorer may get a copyright for the result of his efforts. Be that as it may, it is submitted that the Interlego proposition is anyway distinguishable where the replicator succeeds in preserving for posterity an original to which access is difficult."
"Reproductions requiring great talent and technical skill may qualify as protectable works of authorship, even if they are copies of pre-existing works. This would be the case for photographic and other high quality replicas of works of art"
In the end the question is one of degree how much skill, labour and judgment in the making of the copy is that of the creator of that copy? Both individual creative input and sweat of brow may be involved and will be factors in the overall evaluation.
"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 (para.58)"
i) This sort of question (sufficient work to be "original") is just the sort of value judgment by a trial judge with which the Court of Appeal should be slow to interfere, see Biogen v Medeva [1997] RPC 1 at p.45. Some error of principle is called for. Here there was none.ii) The solution accords with a reasonable view of public policy that the sort of work done by Dr Sawkins should be encouraged. It saves others the time and trouble of re-creation of near-lost works, but in no sense creates monopoly in them. If someone wants to use Dr Sawkins' short cut, they need his permission.