Hyperion Records loses landmark copyright case, public domain classical use nearly impossible in the UK

UK Label Hyperion Records lost an appeal today, which they describe on their web site at http://www.hyperion-records.co.uk/.

The issue in the appeal is that Hyperion published a CD which used a sheet music edition of a public domain work, but that the mere effort of making a clean modern edition of the public domain work was enough for the sheet music to be considered a new work, and worthy of copyright. No significant changes were made to the music (which is a requirement the US congress makes for accepting a copyright claim to a public domain work).

This effectively means that the only way to record or perform a public domain work is to go to a facsimile (photograph) the public domain work, and to make your own edition.

In the short, term it may mean money for sheet music publishers who sue labels who thought their CDs used public domain music. Longer term, it will damage the sheet music business, since the only legal use of purchased sheet music will be private/non-commercial performance, with any public performance or recording requiring additional licensing from the sheet music publisher.

From the Hyperion web site:

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)"

Thankfully, this sort of copyright absolutism doesn't exist in the USA, but the UK is definitely a sophisticated marketplace: this is a not a backwater "odd-ball" legal case. A friend of ours who runs a classical label was watching this case closely as he feels it will severely impact the UK classical music label business.