Legal decision bodes badly for music

A recent British legal decision on the scope and remit of 'copyright' may now sink one of the UK's independent classical recording companies.

In the lead judgment of the Court of Appeal, Lord Justice Mummery held that: In my judgment, on the application of Walter –v- Lane to this case, the effort, skill and time which the judge found Dr Sawkins spent in making the 3 performing editions were sufficient to satisfy the requirement that they should be “original” works in the copyright sense. This is so even though a) Dr Sawkins worked on the scores of existing musical works composed by another person (Lalande); b) Lalande’s works are out of copyright; and c) Dr Sawkins had no intention of adding any new notes of music of his own (Para 36)

Lord Justice Mummery decided that “A work need only be ‘original’ in the limited sense that the author originated it by his efforts rather than slavishly copying it from the work produced by the efforts of another person” (Para 31).

In relying on the decision in Walter -v- Lane, the Court of Appeal rejected Hyperion's reliance on the House of Lords authority of Interlego -v- Tyco. This case (which concerned a claim to copyright in a new technical drawing for the lego brick) made it clear that even though a lot of skill was required to copy the original technical drawing that did not mean that the new drawing was original. By analogy, Hyperion contended that even though Dr Sawkins had exercised a lot of skill in copying the music of Lalande into the modern form (a textual process) that did not mean the resultant edition was an original musical work.

Hyperion lost. Whither now goest the future of recorded music?