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Peter Phillips
Legal cases involving copyright law have a mind-numbing quality which ensures that the general public doesn’t follow them. This kind of law evolves as it is invoked, and the principles behind it can easily seem to be balanced on the head of the proverbial mediaeval pin. Nor, one has the impression, are dancing angels necessarily part of the overall picture. However, in the matter of Hyperion Records against Dr Lionel Sawkins enough is at stake for us all to take an interest.
What this case comes down to is the survival of one of our most valuable musical businesses, whose existence is threatened by an academic who claims that his editorial contributions to an original composition make the work his. If it is shown that Hyperion broke copyright in recording this piece, it will face charges of something around a million pounds. It will then follow that publishers of many of the editions currently in the public domain will be able to reclaim copyright over those editions, with maximum collateral damage all round. This would represent a shaking-up of the status quo which very few people really want or would benefit from.
I do not pretend to know the answer to the precise legal point in question, which in essence is ‘does the addition of any extra notes or markings by an editor mean that he can claim 100 per cent copyright in that work’? On the face of it, this 100 per cent is obviously nonsense, since what will be published and performed will be 99.99 per cent by the composer named. No one expects anything different or is misled by the smaller print which gives the name of the editor who has put the music into modern format. If the work were to be marketed, for example, as being by the editor with a lot of help from (small-print) Mozart, no one would buy it. But the law has been interpreted as being absolute about this: change a note, or some verbal underlay, and for copyright purposes the whole thing belongs to the editor.
Whatever the law decides in this matter, the punishment, if it decides against Hyperion, will not come anywhere near to fitting the crime. To threaten the existence of a small company like this for a few added figured bass notes is plainly against all common sense. Anyone could have added those notes — indeed performers standardly do it as they go along — which means Dr Sawkins has acquired a power which in my view he simply doesn’t deserve. Let us remember that the Hyperion catalogue of recordings is one of the most eclectic there is. For many years it has bucked the trend of what it has been considered advisable to record, supporting all manner of different repertoires and groups, and winning the most prestigious awards in the process. And, despite the costs involved, it has deleted very little. Run-of-the-mill record companies just don’t dare to do these things any more. Anyone interested in preserving classical music from being dumbed down should respect Hyperion’s situation.
Of course an issue like this should never have ended up in a court of law. That it has is partly the responsibility of the Mechanical Copyright Protection Society, which has acted with bureaucratic inflexibility. John Rutter recently pointed out that, if a now-abandoned Performing Right Society scheme were still in place, none of this would have happened. It was the job of this panel, made up of professional musicians, to scrutinise new editions of music and judge just how much input an editor was entitled to claim. This was done on a sliding scale of 1 to 12, not on an allor-nothing decision. The adding of the figured bass notes in question would presumably have registered about 0.1 on this scale, though one accepts that the academic needs to be paid for the work he did actually do. No doubt before accepting the commission he looked at the fee being offered and proceeded accordingly.
I am not arguing against the usefulness or the probity of editors of music: they are highly trained people with an important job to do. All of the music which I perform professionally has to be edited or we couldn’t read it. But copyright, as Rutter said, should be there ‘to reward creativity, not scholarship or diligence’. The difference between these things has become blurred, with the potential for dire consequences.
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