Hyperion Appeal Sinks

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

At trial Mr Justice Patten held that recording fellowship Hyperion had infringed Sawkins' copyright inwards modern surgical operation editions of the plant of the obscure long-dead (and so out of copyright) French composer Lalande (1657-1726). Sawkins, a musicologist, carried out lots of interrogation into his plant together with created novel performing editions yesteryear making corrections together with additions to the notation necessary to brand the music playable. He too added or amended figured bass lines together with corrected incorrect notes, without genuinely "re-composing" Lalande's music together with contended that this was an application of his science together with 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 whatsoever royalties on the reason that an editor was non entitled to copyright inwards a performing edition of music that had fallen into the pulbic domain. Sawkins' claim that his performing editions were master musical plant was accepted at trial together with yesteryear the Court of Appeal.

According to the Court of Appeal, *

* the effort, science together with fourth dimension which Sawkins spent inwards making the performing editions were sufficient to satisfy the requirement that they should hold upward "original" plant inwards the copyright sense, fifty-fifty though Sawkins worked on the scores of existing musical plant that were out of copyright together with had no intention of adding whatsoever novel music of his own;

* Hyperion's defense forcefulness that Sawkins' operate was non "music" rested on an unduly narrow persuasion of what constituted "music" for copyright purposes, since the subsistence of copyright involved an assessment of the whole operate inwards which copyright was claimed;

Lalonde: jukebox idol at the fourth dimension of Louis XIV together with XV

* Hyperion's submissions ignored the fact that the totality of the sounds produced yesteryear the musicians was affected yesteryear the data inserted inwards the performing editions: the audio on the CD was non merely that of the musicians playing music composed yesteryear Lalande.

* if copyright subsisted inwards the performing editions, the performers who used Sawkins' scores reproduced the overwhelming bulk of the editorial interventions marked upward yesteryear him inwards his scores. If this was done without his authorisation, it infringed his copyright whether or non the performers included whatsoever additional textile was included yesteryear the performers.

* There was a breach of Sawkins' moral right to hold upward known every bit the writer of his operate nether s.77 of the Copyright, Designs together with Patents Act 1988 because the CD did non position Sawkins every bit the writer of the performing editions.

had no uncertainty that this appeal would neglect together with thinks the Court of Appeal conduct maintain got it right. He too notes that, although Lord Justice Jacob was sitting, the other 2 judges too managed to brand their voices heard (in Lord Justice Mummery's instance quite substantially).

A to a greater extent than recent musical Lalonde here