Hyperion Records Ltd v Sawkins

Copyright may subsist in a performing edition of out-of-copyright music where the editor’s independent skill, labour, time and judgment produce an original work. Newly composed notes or a rearrangement of the underlying melody are not essential. Corrections, figured bass, ornamentation, tempo and other performance directions may contribute to a musical work where they affect, or may affect, the sounds produced. The edition must be assessed as a whole, and mere mechanical or servile copying remains insufficient. Substantial reproduction is judged qualitatively by reference to the nature of the work; additions by the copier do not cure substantial copying. An acknowledgement of editorial contribution may fail to satisfy the author-identification right if it does not identify authorship.

Hyperion appealed from Patten J’s judgment in the Chancery Division, reported at [2004] EWHC 1530 (Ch). Hyperion had recorded and issued a CD using three performing editions of music by Lalande prepared by Dr Sawkins. Patten J held that copyright subsisted in the editions, that Hyperion had infringed it, and that Dr Sawkins’s moral right to be identified as author had also been infringed. The claim concerning a fourth work was rejected and was not the subject of a cross-appeal.

The appeal concerned whether the editions were original musical works under the Copyright, Designs and Patents Act 1988, whether the CD reproduced a substantial part of them, whether the Paillard edition had been copied, and whether the attribution in the CD booklet satisfied the statutory author-identification right.

1. Disposition. The appeal was dismissed unanimously. Mummery LJ gave the principal judgment. Mance LJ agreed with it and with Jacob LJ’s additional reasoning. Jacob LJ explained why the editions, particularly Venite Exultemus, satisfied the originality requirement.
2. Originality. Under the Copyright, Designs and Patents Act 1988, originality does not require novelty, usefulness, inventiveness, aesthetic merit or value. It requires that the claimant originated the work through independent skill, labour, time and judgment rather than slavish copying. Applying Walter v Lane [1900] AC 539, the court held that faithful work based on another person’s material can nevertheless be original. Jacob LJ treated the question as one of degree. The relevant contributions had to be assessed qualitatively and quantitatively as a whole.
3. Musical work. The court rejected the submission that only newly composed notes, melody or harmony could constitute music. A performing edition may be a musical work where its corrections, figured bass, ornamentation and performance directions affect or potentially affect the sounds produced. The whole edition must be considered; its component parts cannot be discarded separately. The work’s practical effect in making otherwise unplayable music playable was relevant, although mere copying or mechanical transcription would not suffice.
4. Infringement and copying. Substantial reproduction depends on the nature of the copyright work and the quality and importance of what was taken. The recordings reproduced the overwhelming majority of the editorial interventions, including chords indicated by the figured bass and corrected notes. Minor omissions and the addition of fresh material did not prevent substantial copying. The judge was also entitled to find that the Paillard edition had not been copied and that the relevant edition resulted from Dr Sawkins’s independent effort.
5. Moral rights. The right under section 77 included identification when copies of sound recordings were issued to the public. Hyperion’s acknowledgement of Dr Sawkins’s preparation of performance materials did not identify him as author. The specified form of identification was not used, so section 77 had been breached.

1. Court of Appeal (Civil Division): On 19 May 2005, the appeal was dismissed.
2. Chancery Division: Patten J’s judgment of 2 July 2004, [2004] EWHC 1530 (Ch), held that copyright subsisted in three performing editions, that they had been infringed, and that the author-identification right had been breached.