16 September 2008

Copyright: New Copyrights for Old Tunes

First published 28 May 2005

Some years ago I was consulted by a small pottery that had received a letter from the legal advisors to a much larger pottery complaining of infringement of copyright in the designs of one of their product ranges. My solicitors showed me samples of the complainant’s products. The back of each item bore words stating that the product was a genuine 18th century design. The letter of response that I settled for my clients alluded to that stamp.  I never heard anything more about that case. It may well be that my draft did the trick and threw the complainant’s advisors off the scent. Equally, it may be that the complainant replied that the response was missing the point, that sufficient artistic work had been done in the late 20th century to reset the 18th design to constitute a separate copyright and that my clients prudently acknowledged the point. Whatever happened, it highlighted one of the more interesting questions of copyright law, namely what is the right kind of skill and labour to create a copyright work. 

Copyright Recycling
The issue probably arises most frequently with artistic works in the context of a change of medium. It has been recognized at least since 
Graves Case (1869) LR 4 QB 715 that a photograph of another artistic work such as engraving can create a separate copyright. The issue also occurs in literary copyright where, for example, one work, such as a film script, incorporates material from another, such as the transcript of a trial as in Warwick Film Productions Ltd. v Eisinger [1969] 1 Ch 508.  The issue came before the Court of Appeal in the context of musical copyright in Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565, [2005] 1 WLR 3281, [2005] 3 All ER 636. The case concerned the subsistence of copyright in the performing edition of long out-of-copyright musical works. Although, as Lord Justice Mummery observed, cases of that kind are infrequent and rarely come to trial let alone appeal, the decision is an important one. The judgment contains insight from Lord Justice Jacob as well as from Lord Justice Mummery on the nature of musical copyright and originality. Given the vigour with which the music publishing and sound recording industries have defended their markets in this country and America recently, this case is likely to be cited in many different contexts.

The Issues in Hyperion
At trial, Mr Justice Patten had held that Hyperion Records had infringed the copyright in the performing editions of three works of the 17th
 and early 18th century French composer Lalonde made by the well-known musicologist Dr. Lionel Sawkins and infringed Dr Sawkins moral rights in failing to identify him as author of those editions (Sawkins v Hyperion Records Ltd. [2004] EWHC 1530, [2005] RPC 47). Dr Sawkins had set out to reproduce the composer’s work as faithfully as possible in his performing editions. He admitted in cross-examination that, save for one piece, he had not actually composed anything new.  He did not claim copyright in Lalande’s music, an arrangement, transcription or interpretation of Lalande's music, a compilation of Lalande's music or any typographical arrangement of Lalande's music. His case was that he had originated the performing editions by his own expert and scholarly exertions, the editions did not previously exist in that form, the contents of his editions affected the combination of sounds produced by the performers whom Hyperion recorded and the resulting combination of sounds embodied in the CD was music. Hyperion attacked Mr Justice Patten’s judgment on the grounds that work that strove to be as close as possible to Lalonde could not be “original” and that in so far as it made no difference to what was perceived by the ear it could not be “musical work.”

Originality
Lord Justice Mummery had no trouble with the first point. If a newspaper reporter can get copyright in a faithful account of a political speech as in 
Walter v. Lane [1900] AC 539 there was no reason why a musicologist should not claim copyright in a faithful rendering of a classical score. As for the second, his lordship’s view was that a musical work consists of more than just notes. It can include the figuring of the bass and performance directions. On that premises, a fresh copyright is formed of the work as a whole. In the British (though not perhaps the American version of the common law) such a work is not to be dissected into copyright and non-copyright parts. Lord Justice Jacob had more trouble with originality in view of Dr Sawkins’s admission that he had created no new music but he also came to the conclusion that Walter v Lane was still good law, even though under the legislation under which the appeal was decided did not require the work to be “original”. The Ontario Court of Appeal has recently reached a similar conclusion through different analysis in Glen Gould Estate v. Stoddart Publishing Co. Ltd., 1998 CanLII 5513 (ON C.A.), (1998), 161 D.L.R. (4th) 321.

Comment
This case reveals much about how copyright works. The right protects value added. When text is edited, for instance, a new literary copyright springs into being.  The value added is the product of independent skill and labour, that is to say the input that makes a work “original”. Skill and labour of itself is not enough. It has to add to the artistic, literary, musical or other creative value of the work in question. That is what is meant by the term “the right kind of labour.” In the case before the Court of Appeal Dr Sawkins editing was the right kind of skill and labour because it rendered performable Lalande’s work. The consultation, testing, observation and other assistance to the programmer in 
Fylde Microsystems Limited v. Key Radio Systems Limited [1998] EWHC Patents 340 
was not.

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