Copyright ruling 'deprives public of rare music'

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The Independent Online

A small record label that has specialised in bringing neglected classical composers to the public faces costs estimated at up to £1m after losing a tortuous legal wrangle over copyright.

A small record label that has specialised in bringing neglected classical composers to the public faces costs estimated at up to £1m after losing a tortuous legal wrangle over copyright.

Hyperion warned that CDs of work by lesser-known composers will be threatened by the Court of Appeal decision which will make it more expensive to release them.

Its battle with Lionel Sawkins, a composer and scholar, began after the label released an album of the music of a long out-of-copyright French baroque composer, Michel-Richard de Lalande, based on arrangements made by Dr Sawkins.

Hyperion failed to get his approval for the release of Music for the Sun King and did not identify him as the editor of the arrangements, prompting him to seek damages of up to £50,000 for breach of copyright.

He won at the High Court last year, but the label took the case to appeal where the judgment was upheld yesterday in a ruling which will have widespread ramifications for the classical recording industry.

Usually no royalties have to be paid on music by composers who have been dead for more than 70 years. But music by neglected composers often requires work by an editor to make scores ready for performance.

Dr Sawkins spent a reported 1,200 hours and researched a variety of manuscript and printed sources to produce the four Lalande editions that went to court. He claimed to have added orchestral parts himself, to have adapted and modernised the notation and restored corrupted parts of the music.

Hyperion argued that the edition he produced for performance was not a new and substantive musical work in its own right and that he could not obtain copyright for it as an original piece of music.

But Lord Justice Mummery, Lord Justice Mance and Lord Justice Jacob disagreed in three out of the four pieces. Lord Justice Jacob ruled that, far from mere copying, Dr Sawkins's adaptations were what made the works "playable". "This was not servile copying. It had the practical value of making the work playable. He recreated Lalande's work using a considerable amount of personal judgement. His recreative work was such as to create something really new using his own original work."

However, Simon Perry, the director of Hyperion, warned that the judgment meant that almost every edition of an out-of-copyright work would have its own musical copyright because the law would regard it as "original".

"This will affect classical record companies and performers of classical music as they will have to seek - and pay for - a licence before performing or recording music from an edition," Mr Perry said.

"The collateral damage caused by this decision will affect not only the prosperity of the company, but also dozens of artists and groups, producers, engineers, composers, music publishers and musical editors, and most importantly, the record-buying public whose access to rare and collectable repertoire served by Hyperion ... will be severely diminished."

The law courts were not the right place to assess questions of copyright which were formerly decided by the Performing Rights Society, Mr Perry added. "Giving someone a copyright for copying something is patently ridiculous."

Dr Sawkins was not available for comment. However, some in the music industry have been sympathetic to the fact that scholars are often poorly rewarded for their work and that the CD should not have gone ahead without terms being agreed.