On 16 Feb 2006 at 11:11, Ken Moore wrote: > I find David Fenton's arguments wholly convincing (even without > reading them the second time(:-) and can confirm his description of > Hyperion as a small family business. In particular, the > reconstruction of a viola part, given the bass figures and all the > other parts, is something that all music graduates from Reading > University were supposed to be able to do, and many of us could. The > compositional element is negligible and the judgment was severely > flawed, IMO.
Since my flurry of (double) posts yesterday, I've found and the read the text of the appeal decision: http://www.bailii.org/cgi- bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2005/565.html I must say that the appeals court in considering the actual laws puts the whole thing in a rather different light than the original decision. In reading the original judgment, I concentrated on the findings of fact, which I believe were mistaken in not considering the degree to which Sawkins's editorial work was entirely dictated by the existing framework of de Lalande's composition. To use a print analogy, if one were doing a new edition of a book, and the copy one was working from lacked the table of contents and half the page numbers and part of the index was missing, so that the page references for much of the index were not there, one could reconstruct from the text of the book the correct table of contents, one could assign the appropriate page numbers, and one could amend the index to have correct page references simply by searching the book for all the indexed terms. This is because all the missing information is implied by the information that exists in the remainder of the text. In the case of de Lalande's work, this was exactly the case. All the information needed to reconstruct the missing musical text was included in what had not been lost. The appeals decision also suggested to me that UK copyright law is based on a number of highly questionable principles, and that the judge writing the decision failed to appreciate the difference between printing and recording. The arguments used to give Sawkins copyright in his edition for performance purposes were drawn from printed models and failed to account (in my opinion) for the differences between creating a printed score and creating a performance from that score. By the logic of the court, I can see no reason to deny any editor who has copyright for the typographical arrangement of any publication to not now claim copyright in the work. The key deciding issue was the degree of original contribution made by the editor, and the judge found that even though Sawkins's edition was completely guided by the dead hand of de Lalande, his contribution was still sufficiently original to give him copyright in the performance from his edition. The discussion of the cases the court used in reaching the appeal decision seem to me to be highly confused, and the conclusions rather questionable. One of the justices dwells at length on the issue of copying visual works (using paintings as an example) and comes to extremely confusing decisions that truly fail to account for important distinctions in the examples, let alone as transferred to the Hyperion case. For instance, the issue of a photograph of a painting. It seems quite clear to me that the reason the court can find an independent copyright in the photograph is entirely because there's a change of medium. The decision is rather foggy on the question of whether a painter who copies a painting exactly deserves copyright. The decision suggests at one point that if the copy were executed in the style of Salvador Dali, that there's a strong claim of independent copyright, but then turns around and says that the more exact the copy, the more likely the painter has a claim to copyright -- it's an extremely confusing passage, and the implications for Sawkins's work seem to me to never be drawn out at all. I would conclude from the discussion of the photograph of the painting that a change of medium can create an independent copyright, and from the Salvador Dali discussion that significant alterations in the copy (as opposed to slavish devotion to the original) also justify treatment as a new work. In musical terms, the transfer of medium is like the difference between the printed edition (which is copyrighted) and the recording from that edition. The performers/record company have a right to a copyright on their recording independent of the copyright on the printed edition, because they've changed the medium in which the content of the original is transmitted. And, of course, the issue of whether or not Hyperion had a copyright on their recording was never in play at all, so the inclusion of the transfer of medium argument makes no sense to me (except that it would tend, it seems to me, to weaken Sawkins's argument, as he was aiming to *not* transfer the work to another medium). Likewise on the Dali claim -- Sawkins stated in court that he was trying to recreate what de Lalande intended, not attempting to create something recomposed in his own style. So, the Dali citation again seems to me to work against the court's decision, as Sawkins was explicitly claiming *not* to be "Dalifying" de Lalande's work (might be interesting to hear the result if he had! :). So, one is left with the confusing claim that the more exact the painter's copy of the original painting, the more the copyist has a claim in independent copyright. That reading of the law seems completely at odds with the reading drawn out from the other examples, and seems a case of special pleading in order to reach a result -- it's a "heads I win, tails you lose" kind of conclusion. > I suspect that in the future, recording companies will have to > negotiate specific contracts with editors that exclude performance > royalties or agree a reasonable figure for them, . . . The original judgment outlined the history of how this came to trial. Sawkins asked for performance royalties all along, and there was some confusion as to whether or not Hyperion would agree to them, but they went ahead with the recordings before the issue was resolved. If I'm remembering correctly, Sawkins had some kind of assurance from the performers that things would be worked out. When the recording was done and Hyperion definitively refused to pay Sawkins the royalties, that's when Sawkins sued. I would wager that in the future Hyperion (and any other record company) will never again let recording begin before the royalty agreements are completely ironed out. > . . . and prepare their own > editions if editors of existing ones are too grasping. . . . For that to work, those editions would have to be "work for hire" editions, which, apparently, require very specific terms. I'm not sure I'd ever agree to edit under those circumstances. But I'm also never going to ask for performance/recording royalties, just a customary fee for use of my editions. > . . . I have not > heard of any retrospective claims based on the new law, perhaps > because most of the other recording companies have greater resources > behind them and would fight harder than Hyperion could afford to. > Also, it is now clear that another such case against Hyperion would > result in immediate withdrawal of the relevant recording and very > likely force the firm into bankruptcy. Few informed musicians in the > UK would wish for either. That's one of the things that mystify me -- why did Sawkins do this? The amount of money involved is tiny compared to the legal expenses on either side. While I believe that the "moral right" to have your name associated with your copyrighted work is important and valuable beyond monetary equivalence, I can't say that I understand why copyright in the typographical arrangement of an edition is not sufficient. I would think that, given the economics of the early music world, nobody who is a serious enough scholar to be able to prepare performing editions would think they are going to get rich from royalties on a recording, since the sales are in the hundreds and low thousands with most such recordings. Most of the retail price of a CD is in distribution costs, so there isn't a lot left to be divided between the interested parties. That said, in an ideal world, editors would be paid $50 per hour for their editing work. Unfortunately, if that were the case, preparation of editions would simply be too expensive to be undertaken by anyone. So, we're stuck with a system based on the "gift economy" model that works well in the Open Source software world, where the money is made not on writing the software, but in acting as a consultant helping people implement and extend the software. Perhaps the new world of downloaded music will change the economics of all of this so that more just compensation could be provided to all involved. I read in the NY Times recently that while Classical music has always been 2 or 3 or 4% of record/CD sales, on iTunes, it's more like 12%. That's a hopeful sign in and of itself, and if it suggests that there's a broader audience for Classical music when the distribution is simplified, perhaps that broader audience will be able to generate enough revenue to put companies creating recordings of rare music on a more sound economic footing. -- David W. Fenton http://dfenton.com David Fenton Associates http://dfenton.com/DFA/ _______________________________________________ Finale mailing list [email protected] http://lists.shsu.edu/mailman/listinfo/finale
