Sawkins v Hyperion Records Ltd [2004] EWHC 1530 (Ch) (01 July 2004)

Neutral Citation Number: [2004] EWHC 1530 (Ch) Case No: HC03 C02114 IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION INTELLECTUAL PROPERTY Royal Courts of Justice Strand, London, WC2A 2LL 1st July 2004 B e f o r e : THE HONOURABLE MR JUSTICE PATTEN ____________________ Between: LIONEL SAWKINS Claimant - and - HYPERION RECORDS LIMITED Defendant ____________________ Andrew Norris (instructed by Peter Carter-Ruck and Partners) for the Claimant Jacqueline Reid (instructed by Wiggin & Co) for the Defendant Hearing dates: 10th - 17th May 2004 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Mr Justice Patten : Introduction Michel-Richard de Lalande was born in 1657. In 1683 he was one of four composers assigned to the chapel of Louis XIV at Versailles. There he became the principal court composer both under Louis XIV and under Louis XV, and he remained in that position until his death in 1726. His principal compositions at Versailles were sacred music in the form of grands motets . By the middle of the 17 th century these were an established form of accompaniment for the Mass and the principal type of sacred music composed for the French court. A grand motet typically comprises a number of sections divided into passages, some for vocal soloists and others for small ensembles of singers and chorus. They also contain orchestral interludes. Until comparatively recently Lalande was principally known for some 300 short movements described as symphonies pour les soupers du roi . These works (as their title suggests) were played at public suppers held at Versailles during the reigns of both Louis XIV and Louis XV. Few of Lalande's grands motets had been revived in performance and the evidence is that until the 1970s none of the motets had been published in full score in what Dr Sawkins, the Claimant, regarded as modern performing editions. Dr Stanley Sadie, the distinguished musicologist and editor of the New Grove Dictionary of Music and Musicians , who gave expert evidence, had prepared performing editions of some works by Lalande for a recording in 1957 and there had been a handful of other editions, including one in 1964 by J F Paillard of La Grande Pièce Royale . But the Claimant says that he wished to prepare editions of the best of Lalande's works in full score which met modern critical criteria. Dr Sawkins is acknowledged to be a world authority on Lalande. In 1996 the French government made him a Chevalier de l'Ordre des Arts et des Lettres, an award which is given to both French and non-French artists and writers who have distinguished themselves by the contribution they have made to the promotion and dissemination of the arts in France and in the wider world. In 2001 he was advanced to the senior rank of an officer of that order. In 1990 and again in 2001 he was invited to act as Conseiller Artistique for a festival of music by Lalande held in Versailles and Paris. This involved him in advising on the choice of works to be performed at the concerts and in preparing a substantial commemorative book for each festival, as well as the programme notes and texts for each concert. As one would expect, most of Dr Sawkins' life has been connected with music. He was born in Australia in 1929 and moved to England in 1958. His musical education began as a child, when he attended classes at the New South Wales Conservatorium of Music and sang with the Conservatorium choir. He had a particular interest in choral music and acted as a church organist and choirmaster at St Andrew's Cathedral in Brisbane. In 1958 he came on a scholarship to study at the Royal School of Church Music and decided to remain in England. From 1959 he was the choirmaster and organist of Holy Trinity Parish Church in Beckenham, where he founded in 1963 the Beckenham Summer Choral Festival. In 1966 he joined the Roehampton Institute as a lecturer of music and became Senior Lecturer there in 1969. In 1983 he was appointed Principal Lecturer. Whilst at Roehampton in 1971 he took a sabbatical year, during which he studied renaissance and baroque music at Nottingham University under Professor Dennis Arnold, who he says directed him towards the music of Lalande. In 1985 he took early retirement from the Roehampton Institute in order to concentrate on his research into French baroque music and to make time to give lectures and workshops on Lalande. This also enabled him to devote more time to the preparation of new editions of his work. Under the guidance of Professor Arnold he had developed a strong appreciation for European (particularly French) baroque music and became especially interested in the grands motets of Lalande, whose works at the time were largely neglected. His promotion of Lalande's work began with various performances of his work which he conducted in London and overseas and by his encouraging others to do likewise. At the same time he began to research extensively into Lalande and his musical predecessors, aided by bursaries from the French Centre Nationale de la Recherche Scientifique and subsequently from the Winston Churchill Trust. This enabled him to visit all known sources of Lalande's music in the libraries and collections in which they were held. In his witness statement Dr Sawkins says (and can fairly say) that he has devoted a considerable amount of his working life and also his retirement to Lalande and that he has an extensive knowledge of his musical works and style unrivalled by any other musicologist. He has since 1975 written extensively on Lalande and has had published numerous articles in various books and journals. He has also from time to time presented a number of papers and conducted workshops on Lalande and other French baroque composers at various conferences and symposia held throughout the world. He is a contributor to eight leading musical dictionaries and catalogues in the UK, France and Germany and has also been contracted by Oxford University Press to prepare the thematic catalogue of Lalande's works, which includes over 3,000 musical examples prepared under his supervision. This is not a complete account of the contribution which Dr Sawkins has made, but it suffices to give an indication of the depth and quality of his expertise and of his standing as an expert on Lalande. In October 2001 the Defendant, Hyperion Records Limited ("Hyperion"), made a recording of four works by Lalande. They were the grands motets Te Deum Laudamus and Venite Exultemus ; the Panis Angelicus from the grand motet Sacris Solemniis ; and the orchestral piece, La Grande Pièce Royale . The works were performed by Ex Cathedra, a choral and orchestral ensemble with a particular reputation for the performance of French baroque music. It was conducted by Mr Jeffrey Skidmore. Dr Sawkins' case is that during 2001, at about the time when he was approached to organise the festival of Lalande music at Versailles, he discussed with Mr Skidmore the possibility of a concert by Ex Cathedra either at the festival or in England of works by Lalande, and the possibility also of a recording, using scores prepared by Dr Sawkins. The recording would take place in October 2001 and would be used for the production of a CD which would be sold under the Hyperion record label. The possibility of a recording had been discussed as long ago as 1999, and in 2000 Dr Sawkins had sent to Mr Skidmore summaries of various works, including the Sacris Solemniis , which he considered might be suitable for the recording. It was ultimately agreed that Dr Sawkins would prepare two new editions of the Venite Exultemus and the Sacris Solemniis for the recording and that Ex Cathedra would also use an existing edition previously prepared by him of the Te Deum . Subsequently it was decided that Dr Sawkins would also prepare a further edition of La Grande Pièce Royale due to his (and, he says, Ex Cathedra's) dissatisfaction with the existing Paillard version. His evidence (which on this is not really disputed and which I shall come to in more detail later in this judgment) is that he worked on the editions from about mid-2000 and completed them in time for the recording. He estimates that he spent approximately 300 hours on each of the four works. The editions were completed by August 2001, when copies were sent to Mr Skidmore. Dr Sawkins followed his usual practice of registering the three new editions with the Performing Rights Society ("PRS") and the Mechanical Copyright Protection Society Limited ("MCPS"), who license the performing and mechanical recording rights in copyright music on behalf of the copyright owners. On the front page of each of the editions there is the usual assertion of copyright, with the date of the work and the name of the Claimant. The events leading up to the recording are contentious and I will need to come to them in more detail later in this judgment, but what is not in dispute is that in September 2001 Hyperion received from Dr Sawkins, via Ex Cathedra, what was described as a Recording Hire Agreement containing a term to the effect that he was the owner of the copyright subsisting in the four scores and imposing restrictions on what use could be made of the copyright works. The response of Hyperion was to agree that it would credit Dr Sawkins with the authorship of the editions on the CD, but would not be prepared to pay to him any royalties in respect of the copyright works. It refused to sign the agreement and returned it to him. This led to solicitors' correspondence and to an attempt on the part of Ex Cathedra to mediate in the dispute between Dr Sawkins and Hyperion. The primary concern of Mr Skidmore and those at Ex Cathedra was to ensure that the recording went ahead. Dr Sawkins says that he relied to a large extent on assurances given to him by Mr Skidmore and Mr John Pulford, the Chairman of Ex Cathedra, that the copyright position would be sorted out with Hyperion, but it is evident that by the date of the recording that had not occurred. The dispute continued right up until the recording date, during which time Dr Sawkins provided Ex Cathedra with copies of his scores, for which he was paid a hire charge. He says that he did not give Ex Cathedra authority to grant a licence to Hyperion to reproduce his works in a recording, but that he was prepared to allow the recording session itself to go ahead, in the hope that the copyright issues would be resolved. In the end they were not. The recording took place and subsequently the CD was produced and marketed under the title Music for the Sun King . Dr Sawkins says that this constitutes an infringement of his copyright and also of his moral right to be identified as the author of the copyright works. He seeks an injunction to prevent infringement and an inquiry as to damages. Hyperion's principal defence to the claim is that Dr Sawkins is not the author of a musical work within the meaning of s.3 of the Copyright, Designs and Patents Act 1988 ("the 1988 Act"). I was told by Mr Simon Perry, the Director and majority shareholder of Hyperion, that the policy of his company is never to pay copyright royalties in respect of musical works which are deemed to be out of copyright by virtue of their age. The central issue for me to determine in this action is whether the production of a new performing edition of the score of an existing composition is capable of vesting in the editor copyright in the musical work, as recorded in the score which is produced. Hyperion also rely on an alleged licence from Ex Cathedra to record the four Lalande pieces and assert that the Claimant in any event either acquiesced in the use of the editions for the purposes of making the recording or alternatively is estopped from relying upon his alleged copyrights to prevent exploitation of the recordings. There is also an issue as to whether or not the performances recorded by Hyperion were in fact of the precise transcriptions provided by Dr Sawkins. These issues turn on the evidence of the events leading up to the recording, which I will come to later in this judgment. Copyright in a Musical Work? At the start of his evidence Dr Sawkins explained what his intentions were in creating the new performing editions of the works that were to be recorded. He accepted that his aim was, so far as possible, to reproduce faithfully Lalande's work. It was put to him that the more successful he was at doing this, the more likely it was that he would have produced something close to what the composer had himself originally created. Dr Sawkins accepted the thrust of the question, but emphasised that the determination of whether he as editor had succeeded in producing an edition close to the composer's original intentions was largely guesswork, based on his own knowledge and experience. He could not be certain that what he had produced was what the composer originally intended at all points. What he has done is to use the source material to create what he believes to be an accurate reflection of the composer's own intentions. But the process of editing was also designed to produce a playable edition of the works which would not waste time in rehearsal or during the recording session and which would resolve any ambiguities in the original source material. Although the extant scores often contained most, if not all, of the relevant information, Dr Sawkins said that it needed decoding. He did not accept that his role as editor involved little more than the reproduction in a modern format of the music derived from and set out in the sources. He said that it was not as simple or straightforward as the suggestion put to him. No single source was sufficient to transcribe an accurate and playable version of the music, and the job of the editor was to draw on several sources in order to produce a score and a series of parts which would be playable. The work obviously did involve the transcription of the music from the original scores into modern notation, but that was not the whole story. Even in the case of the Te Deum , where the composer's autograph score survives and was used as the primary source, there were what Dr Sawkins described as "shorthands" all over the score. These needed to be interpreted for the benefit of the performers. I shall come a little later to the detail of the editing in relation to the works that were recorded, but it was apparent from Dr Sawkins' evidence that his work as an editor did not (and was not intended to) include what might be termed the recomposition of the works in question. He accepted, when it was put to him, that he had not composed what might commonly be described as an arrangement of the music. He preferred to describe them as adaptations. In some instances individual notes were missing or inaccurately recorded, and often flourishes and other performing indications had to be added or corrected. One particular omission from much of the original source material, which featured significantly in the evidence, was the absence of any figuring. In relation, for example, to the Sacris Solemniis , even an earlier edition of the full manuscript score (the Cauvin edition) omitted the figuring from all the choruses and some of the other movements. Dr Sawkins said that the figuring in relation to the bass line of a baroque work of this kind was the foundation of the work. Basse-continue (meaning continuous bass) is, as Mr Guy Protheroe, the Defendant's expert, explained, a feature of most music of the baroque period. It consists of a bass line only, which is to be played on instruments such as the cello, viola de gamba, double-bass or bassoon. Another chord-playing instrument such as an organ or harpsichord also plays the bass line, but adds the chords above it, which are drawn from and match the music in the lines above. In order to save this player from having to read all the orchestral parts to work out what chords to play, composers developed what came to be described as a figured bass. This involved placing figures either above or below the notes in the bass line, although the modern practice (followed by Dr Sawkins) is to place them below. Where there is no figure under a note, the convention is that this denotes the most common chord, which Mr Protheroe describes as a root-position chord: i.e. a triad with a root note, the third above and the fifth above. When (for example) the figure 6 appears, this means that instead of the top of the chord being the fifth note, it is to be the sixth. Dr Sawkins said that he derived most of the figuring from the other sources, where it was correct and compatible with the full score. Both Dr Sawkins and Mr Protheroe were agreed that the figured bass is intended to give the chord-player guidance, but not to provide what might be described as a complete and inflexible code. The figuring does not always tell the keyboard player what is the complete chord and Dr Sawkins' practice in producing the editions was to reproduce what he described as the minimum possible in order to avoid accidents. It acts in effect as a shorthand for reading the other orchestral and voice parts above the bass line and for playing the harmonies. The performer still has to use his own skill and experience to play what he considers to be the appropriate notes, but Dr Sawkins accepted that this was a skill which nowadays is usual in the case of anyone who is adept or experienced at playing baroque music. One way of assisting the keyboard player is to fully realise the figured bass, and in earlier editions that was occasionally done. But both Dr Sawkins and the experts told me that the practice is now very rare, largely because of the increase in the number of skilled players of baroque music. A fully realised figured bass is also restrictive, and most experienced players prefer to realise the figured bass themselves during performance. Dr Sawkins said that the aim of a modern editor is usually, even when providing a realisation of the figured bass, to give the simplest possible realisation and not to write in what he described as a lot of fancy detail. In the case of the editions which are the subject-matter of this claim, no attempt was made by Dr Sawkins to realise the figured bass at all. This was in contrast, for example, to the Paillard edition of La Grande Pièce Royale , where there is a full realisation of the figured bass line. The inclusion of the figuring without any realisation leaves the keyboard player with a considerable amount of freedom to play what he considers to be tasteful and useful. Those were the adjectives used by Dr Sawkins. In the present case this is what in fact happened during the recording session. It is evident from the score used by the basse-continue player (Dr Ponsford) that he has added his own figuring in a number of places to that provided on Dr Sawkins' edition. Dr Sawkins said that a lot of what Dr Ponsford had added was not strictly necessary in order to read the music, but simply acted as an aide-mémoire to ensure that during the recording session he did not accidentally play the wrong chord. In order to understand the task undertaken by Dr Sawkins it is necessary to say something about the state of the source material. Only a very little of Lalande's manuscript work survives. His manuscript scores were offered to the French Royal Library immediately after his death, but could not be purchased due to lack of funds. Lalande's widow, who survived her husband by almost fifty years, hired out copies of her husband's work for various concert performances, and Dr Sawkins suggests that much of the material was either mislaid or simply wore out as a result of use. It may also have been destroyed during the French Revolution. The only complete score that survives of any work by Lalande in his own hand is the composer's working score of the Te Deum . Not surprisingly, this contains many corrections and alternatives which require editing before the work can be performed. It is, I think, common ground between the experts that it would not have been possible for Ex Cathedra or any other group to use the manuscript score of the Te Deum as a performing edition. The absence of most of the original manuscript scores means that any editor of a Lalande work has to consult a variety of manuscripts and printed sources dating from the late 17 th and early 18 th centuries, the originals of which are distributed amongst a number of libraries. Most of these libraries are in France, but material is also contained in libraries in Austria, Belgium, Germany, Italy, Sweden and the United States. Dr Sawkins says that he has, over time, worked in more than fifty libraries worldwide where Lalande material can be found. Where possible, he worked from the original material, but in many cases it was necessary to look at copies held on microfiche. Much of this groundwork has been carried out by Dr Sawkins over many years, during the course of which he has acquired copies of some of the scores, including the manuscript score of the Te Deum . But he does not retain copies of all the sources of all the works. Therefore, in preparing the performing editions of the four works in question here, he had to travel to look at the sources in their various locations and to make a decision about what material to use in preparing the final editions. He did, however, acquire or retain copies of the source material which he decided to use, and he prepared the editions by assembling the score based on the source material, using a keyboard and computer. He worked from a print-out of a film of whatever principal source he had chosen and inputted the score note by note, line by line and movement by movement through an electric piano and a MIDI connection, which translates the music played onto the page through the music software. This facility allows the result to be played back at each point, to check for any mistakes in the source, and when the principal source used is defective in some respect, then the problem has to be resolved, for example by the addition of a note or the provision of figuring for the bass line. Dr Sawkins says in his witness statement (and none of this was disputed) that he kept a running list of all editorial amendments made to the chosen sources and of any unresolved queries. If the editorial process detected a problem in the principal source, it was then usually necessary to check the other available sources to determine what had caused the difficulty. Sometimes this was due to the copyist or engraver having written in the wrong clef or having repeated or missed out a bar, but on other occasions the problem was down to the composer having changed his mind and crossed out or bleached out his first attempt at the relevant part of the score. Some of the crossings-out would have to be restored in the new edition to create a coherent performable result. This process obviously took a considerable time. Once Dr Sawkins was satisfied that the correct musical material had been entered onto the prepared scores, the next stage was to lay out the music onto a printed page so as to make each score as readable as possible, whilst at the same time avoiding unnecessary page-turns. This part of the process of course adds nothing to the content of the edition, but does require a detailed understanding of music engraving and is, I am sure, a lengthy and painstaking business. Once it is done, the next task is to extract from the full score a choral score for the use of the choir and parts for each instrument in the orchestra. These extracted parts must then be checked against the full score to ensure that nothing has been omitted. At this stage in the process Dr Sawkins' practice was also to check again the background material for each score, to ensure that nothing had been omitted or required to be revised. At the end of the editorial process the scores were then prepared for printing. Full scores were printed for the conductor, solo singers, keyboard players and record producers; choral scores for the choir; and individual orchestra parts for the relevant players. As I said earlier in this judgment, Dr Sawkins estimates that the total time involved in the preparation of the new edition of each work was 300 hours. It will be apparent from the process that I have just described that the process of editing undertaken by Dr Sawkins combines the scholarship and knowledge derived from a long and detailed study of the composer's music with a certain amount of artistic inventiveness. Lalande was apparently an inveterate reviser of his own works, so that more than 30 of his 77 grands motets survived in more than one version. It was therefore necessary for Dr Sawkins to establish a chronology of such revisions and then to decide which of the versions to use. In the case, for example, of the Te Deum , there are apparently at least four versions which have survived and others of which the existence is known. In his witness statement he says that he has had to use what he describes as his palaeographic and creative musical skills, coupled with his knowledge of the period and the composer's style, to compose the individual parts which are now missing but are thought to have existed. In the case, for example, of La Grande Pièce Royale , Dr Sawkins took the view that it was probable that the work was intended to have five orchestral parts, only three of which survive in the source material. Therefore in preparing his edition of that work he composed some parts for the viola in respect of 153 of the work's 268 bars. This process of restoration is described by him as one of making informed assumptions, and he says that it calls for originality as well as the musicological investigation and work of the kind already outlined. The composition of the missing parts is carried out with the aim of reproducing the composer's original intentions based on the editor's understanding of his musicality, as derived from a detailed study of other works where the full scores survive. It is nonetheless, within those parameters, a creative process. Against this general background I now turn to consider what Dr Sawkins claims to have done in relation to the four specific works which are the subject of the performing editions in issue. I can begin with what is in many ways the most contentious, namely La Grande Pièce Royale . La Grande Pièce Royale This was the first score to be printed in readiness for the recording session. It was sent to Mr Skidmore in February 2001, together with the orchestral parts. La Grande Pièce Royale is an orchestral suite with six linked movements, which dates from about 1695. It is scored for strings, oboes and continuo and includes some solos for the bassoon. There are four sources for the work, all of which are in the Bibliothèque Nationale de France and were consulted by Dr Sawkins. The earliest (dated 1695) is F-PnF533. This presented Dr Sawkins with problems of legibility caused by the ink having soaked through from one side of the folio to the other on certain pages. It was, however, possible for him to see from the ink colour what has been written on each side of the paper. The other difficulty relating to this source is that it gives no specification of the instruments to be used, no figures to the bass line and very little ornamentation. The second source (F-Pn582) comprises a set of four part-books dating from about 1703. The two other sources (F-Pn581 and VM 3077) are two collections of Lalande symphonies put together after his death and are the sources on which Dr Sawkins' edition is largely based. Dr Sadie described them as more precisely written and informative, and they include guidance on instrumentation and figures for the bass. The source material indicated to Dr Sawkins that the work was originally performed with second violins and violas or two groups of violas. These parts were missing and Dr Sadie suggests in his report that in Lalande's time they would have been supplied by his assistants. Dr Sawkins therefore, as part of his editing, composed the missing viola parts. As mentioned earlier in this judgment, they take up 153 of the work's 268 bars. In addition to this, he considered that it was necessary to make some 34 of what he described as editorial interventions, to suggest which instruments might play in those places where even the most detailed of the sources (F-Pn581) failed to make that clear. Many of the editorial additions to this work were made to provide the performers with clear instructions as to when and when not to play. In the case of this edition all the figuring was derived from the original sources and Dr Sawkins was content to adopt it. The bulk of the work related to the creation of the new viola passages and the other performing indications which I have mentioned. Dr Sadie in his report describes the addition by Dr Sawkins of the viola parts as enriching the musical texture of the work in a suitable and stylish way. These inner parts are in his opinion original and exclusive to the edition and were, he says, faithfully played on the CD based on the recording session. They substantially affect the way in which the music is perceived and Dr Sadie's view is that the score does not represent a copy of the Lalande work, but rather a new and original realisation of it. The Defendants accept (in contrast, they say, to the other three works in issue) that the edition of La Grande Pièce Royale does include significant recomposition in the form of the viola parts. For the reasons which I shall come to in more detail later, the degree of recomposition involved would normally be sufficient to give rise to copyright in the published work. However, this is challenged in the present case on the basis that the new viola parts are not original but were copied (whether intentionally or not) from the earlier Paillard edition. This allegation is based on the analysis carried out by Mr Protheroe of the similarities between the Paillard edition and Dr Sawkins' work. The Paillard edition also included two extra instrumental parts. In the Paillard edition the music is laid out on seven staves with separate woodwind parts. Paillard has added a second violin part and only one viola. In the Claimant's edition two violas are used and Dr Sawkins has laid out the score in what he describes as authentic 18 th century fashion, partly on three and partly on four staves, which are supplemented by the original scoring directions where these survive. So, for example, where in Dr Sawkins' edition the word tous is used to indicate that all the instruments should play, Paillard has written a separate stave for the individual instruments involved. As I mentioned earlier, he has also realised the figured bass. In his report Mr Protheroe sets out in some detail the results of his analysis of the two versions. He makes the general comment that the additional parts in the Paillard edition are more elaborate than those provided by Dr Sawkins. He then breaks up the parts into sections. In relation to bars 1 to 25 he expresses the view that the extent of the similarity between the Sawkins and the Paillard passages is limited, and such similarities as do exist could be the result of coincidence. However, in relation to the next passage which he concentrates on (bars 54 to 105) there is, he says, a much greater degree of similarity. Most of the notes in the Sawkins edition, in terms of both pitches and rhythms, are the same as those in one or other of the two Paillard parts. In bars 102 to 103 the same phrase appears, an octave lower in Sawkins than in Paillard for a few notes, and also briefly in bars 72 to 73 for two notes. Out of 184 notes in the Sawkins edition, 160 coincide, he says, with notes in the Paillard edition. The next passage involving added violas which he considers is at bars 137 to 141. Mr Protheroe's view is that, whilst there are some similarities with the Paillard edition, they are not very extensive. The same goes for the next relevant passage, between bars 149 and 157. He says that he has no reason musically to assume that there was any copying in these phrases. The same comment is made in relation to the short sections of added parts in Dr Sawkins' edition which appear between bars 181 to 184, 189 to 192 and 226 to 235. However, in relation to the passages between bars 163 to 170, 197 to 201 and 208 to 211, a much greater degree of similarity is noted. In the passage between bars 163 and 170 Mr Protheroe says that every note in both of the Sawkins parts is matched directly by those in the Paillard parts, except for one, and that most of the rhythms are also similar. Out of 31 notes in the Sawkins edition, 29 coincide with Paillard. In relation to bars 197 to 201 only 3 notes in Paillard are not the same in Sawkins, and out of 24 notes in the Sawkins edition, 23 coincide with those in Paillard. In relation to bars 208 to 211, out of the 13 notes in the Sawkins edition, 12 coincide with notes in the Paillard edition. The final section reviewed by Mr Protheroe is the passage from bar 237 to bar 267. In the Sawkins edition this consists of a single unison viola line. Mr Protheroe says that the similarities between the Sawkins and the Paillard edition are very extensive, with almost every note in the Sawkins viola part corresponding to one or other of the two Paillard parts. Out of 134 notes in the Sawkins edition, 125 coincide with notes in the Paillard edition. Based on these similarities Mr Protheroe expressed the view in his report that the majority of the added viola parts in the Sawkins edition appear to be derived or copied directly from the Paillard edition. This is strenuously denied by Dr Sawkins. In his witness statement he says that the entire concept of his edition is different from that of Paillard and that one is not derived from the other. The Paillard edition was an arrangement for a modern orchestra in the style fashionable at the time, whereas Dr Sawkins has attempted to create an edition in accordance with the musical conventions of the 18 th century. He also said that the viola parts added by him are generally plainer and simpler, although he acknowledged that during the last 30 bars of the music there are what he describes as some serendipitous similarities. This is largely due to the limitations imposed by the need for the inner parts to agree harmonically with the existing outer parts. Paillard was of course subject to the same limitations and it was therefore almost inevitable that similarities between the two editions would occur. Dr Sawkins and both experts were cross-examined at some length about this issue. Dr Sawkins accepted that he had conducted the Paillard edition, but did not like it. He had two copies of the score and a full set of parts, which he had purchased from United Music Publishers some years earlier. He had also lent his editions to Ex Cathedra and it was, I think, as a result of this that Mr Skidmore expressed his own unhappiness with the quality of the Paillard edition. Dr Sawkins contested the degree of similarity alleged in Mr Protheroe's report. Much of the controversy centred on a table contained in the report which, on the basis of an analysis between the notes in the two editions, produces percentages of similarity for the relevant passages ranging between 87% and 96%. Dr Sawkins accepts that the table accurately records the numbers of identical notes in the passages which Mr Protheroe selected, but criticises this treatment as unrepresentative and unfair. He makes the point, which to some extent Mr Protheroe acknowledged in his report and went on to accept in cross-examination, that in many places the possibilities for the editor were extremely limited. The music in the already existing score largely dictated the composition of the inner parts. His point, however, was that the passages which he wrote were not based on or copied from the Paillard edition, but were derived by his own efforts from those outer parts. This point was also made by Dr Sadie in his report, where he addresses directly the allegation of copying. He says that the actual notes and their dispositions in Dr Sawkins' edition are different from Paillard's, except insofar as the harmony predicates what notes can be used in any particular chord and where the harmonic and contrapuntal implications of the original text demand that two bars be written in a particular way. An example that was put to Dr Sadie in cross-examination, based on one of the passages selected in Mr Protheroe's report as an example of copying, was the passage which appears at bar 59. It was put to Dr Sadie by Miss Reid on behalf of the Defendants that at bar 59 the editor had a number of options and was not required to use exactly the same notes. He was asked whether it would have been technically possible to have used a lower octave. He agreed that it would have been technically possible, but that this would have produced a very disagreeable sound. The possibilities were therefore extremely limited in terms of harmony. His general view was that in relation to the passages identified by Mr Protheroe there was very little freedom of choice, if one wanted to stay faithful to Lalande's likely intentions and to produce something that was musically acceptable. The issue which I have to decide is whether the similarities which exist between the Sawkins and the Paillard versions are due to some form of copying or whether they simply resulted from Dr Sawkins, as part of his independent work, coming to a similar conclusion as to what the dynamics of the existing score permitted him to do. I believe that it was the latter. Having heard Dr Sawkins give his evidence and having taken into account the expert evidence, and in particular the limited freedom which I think both experts ultimately accepted the editor had, I am not satisfied that there was any attempt made by Dr Sawkins to copy the Paillard edition, whether consciously or unconsciously. I regard and find that the added viola parts included by Dr Sawkins in his edition of this work were the product of his own skill and labour, unaided by the Paillard edition. Te Deum The Te Deum was composed in 1684, but was later reduced by Lalande to about 70% of its original length. This involved making use of some of the original material, but included a substantial amount of recomposition. By the time of the death of Louis XIV in 1715 the work had again been expanded and new material added. Lalande continued to revise the work over a period of more than 40 years. The source material available to Dr Sawkins consisted of seven manuscript scores, two sets of orchestral parts, a volume of extracts and the posthumous printed edition of 1729, copies of which exist in different libraries and in various private collections. Dr Sawkins concentrated on five versions of the work (each of which he says was interesting in its own right) but he chose as the primary source and the basis of his edition F-Pn, H.400D, because it is a score in Lalande's own hand. It also shows the various changes made to the work during the composer's later years. Dr Sawkins says that it was particularly valuable to him as an editor, because it contains much more information about how the work was performed than do the other extant versions. Of particular note is the fact that the composer marked the duration of each movement on the score, which allows the modern performer to calculate the exact tempo that the composer intended. This allowed Dr Sawkins, as part of his editing, not only to put in the tempi for the Te Deum in accordance with the composer's own original instructions, but also to suggest the appropriate tempi for the other works which he edited, based on the sort of tempi that Lalande recommended in this case. In his witness statement Dr Sawkins says that, in all, he made 1,139 corrections to the score of the Te Deum and completed or corrected the Latin text in relation to 284 bars, usually in several of the five voice parts. 672 of the corrections related to the figured bass, of which 319 were not derived from the other source material but were the result of his own interventions, either to correct mistakes or to enhance the performers' comprehension of the chords to be played by adding extra figures. He says that he also made 141 corrections and recompositions of the musical text. This includes the notes for the violas in the second and third stave in bar 46 of Et rege eos , which is on page 65 of his edition, together with the notes in the same staves in the three concluding bars on page 66 of the edition. In the autograph score there is no music in these bars for the viola parts, and Dr Sawkins decided that the composer had simply forgotten to put these in because of earlier cuts that he had made. Although he describes a number of the additional or corrected notes as petites notes which can be regarded almost as a form of ornamentation, Mr Protheroe does not take serious issue with the elements of correction and recomposition claimed by Dr Sawkins in relation to the notation of the work. His real point in relation to these changes is that many of them are relatively minor and would be likely to be added in during performance in any event. He doubts whether some of the alterations would be noticed by most listeners. Similarly, in relation to the figuring of the basse-continue, Mr Protheroe's principal point is that the additional or corrected figures add nothing new, as he puts it, to the musical work. This is because (as already explained earlier) the figures act simply as shorthand descriptions of the musical material already contained in the score. I shall return to this point when I come to consider the question of copyright later in this judgment. The only factual issue raised by Mr Protheroe was the absence of any figures in the conductor's score. This is in contrast to the score used by Dr Ponsford, who played the basse-continue part on the organ during the recording session. Dr Sawkins was asked about this and said that what may have happened was that Mr Skidmore had an earlier version of the score, on which the figuring was not included. That explanation was not really challenged and I am content to accept it. The other matter dealt with at some length in Mr Protheroe's report is the question of ornamentation. Ornamentation is apparently one of the most characteristic features of French baroque music and refers to the decoration of passages in the score by adding what are known as trills on notes. Very often two notes are linked together and the first note acts as a long beginning to the trill on the second note. Dr Sawkins said that this was the most common form of ornamentation and was commonly designated by a cross on the score. Sometimes the composer would use a cross with a slur, which was a more specific indication of a trill on the second note. In the summary of the editorial changes prepared by Dr Sawkins most of the ornamentation is attributed to the manuscript score, yet in the introductory preface to the edition Dr Sawkins records that some additional ornaments and directions are derived from later versions of the work, notably the Cauvin manuscript (F-V, Ms Mus 226). In his report Mr Protheroe says that he has not examined the ornamentation which Dr Sawkins has attributed to the manuscript score, but that in relation to the ornaments identified as originating from himself, many of these are to be found in the Cauvin manuscript. On this basis he says he is led to believe that it is highly likely that Dr Sawkins consulted this source for this purpose in the preparation of the edition. He gives a number of examples of this, the detail of which it is, I think, unnecessary for me to go into. When Miss Reid originally asked Dr Sawkins in cross-examination whether he had incorporated anything from the Cauvin manuscript (in particular, any ornamentation) when preparing the edition, he said that he had not. He said that he was familiar with the Cauvin source and consulted it, but that he did not collate information from it. The source that he did collate information from was primarily the autograph manuscript. What eventually emerged was that Dr Sawkins accepted that in producing his edition of the Te Deum in 1984 he did base a number of the ornamentations on the Cauvin source. However, when he came to update the edition for purposes of the recording session in 2001, this ornamentation remained unchanged, and it was therefore unnecessary for him to resort to the Cauvin source for purposes of adding ornamentation. All that he needed to do when he went through the scores using the computer programme was to satisfy himself that the ornamentation conformed to what he wished musically to achieve. However, in preparing the summaries of his editorial changes for purposes of this litigation, he accepts that a number of the items of ornamentation for which he has claimed credit are likely to be referable to the Cauvin edition. The position about the source of the ornamentation may in fact be more complicated than this. As Dr Sadie pointed out, Mr Protheroe, in attributing ornamentation to the Cauvin Manuscript, may have misinterpreted the source abbreviations contained in Dr Sawkins' list of editorial changes prepared for this litigation. There the source is often identified as H, which is in fact a reference to the reduced score version printed by Hué in 1729. This point was not fully explored with Dr Sawkins and in any event it does not detract from Mr Protheroe's main submission, which is that much of the ornamentation in the edition is derived from one or other of the existing sources. Mr Protheroe's conclusion regarding Dr Sawkins' work on his edition of the Te Deum is that almost all of it falls into the categories of what he describes as transcription and the provision of performance suggestions and instructions and, with the exception of a small amount of additional notation, does not comprise original material. That comment has of course to be read, in relation to the figured bass, as subject to Mr Protheroe's general view that the figures all derive from the notation which already existed. He does, however, agree with Dr Sadie that Ex Cathedra (or for that matter any other ensemble specialising in baroque music) would not have been able to have performed the works in a recording session using any of the original sources. Sacris Solemniis Although Dr Sawkins prepared an edition of the whole of the Sacris Solemniis which was used by Ex Cathedra in concert performances, only one movement was included in the recording. This was the Panis Angelicus , the sixth movement. The Sacris Solemniis was first composed in 1709 and survives in two versions: a manuscript full score which is part of the Cauvin collection and is housed in the Bibliothèque de Versailles; and a later short score version of about 1720, also engraved by Hué. Dr Sawkins used both versions in preparing his edition and both are reflected in it. Dr Sawkins says in his witness statement that although the Cauvin version was copied later, it clearly represents an earlier version of the work and contains many errors. The absence of the viola parts from the Hué edition meant that he had to resort to the Cauvin for those movements and to use the Hué for the movements where the complete scoring existed. These were mainly the passages for solo voices and include the Panis Angelicus . Because only this movement was included in the recording, Mr Protheroe has confined his comments to it. If one does that, then Dr Sawkins' editorial input is quite limited. We are dealing with only two pages of music, containing only six claimed editorial interventions. These include the direction ( lentement ) taken from Cauvin, coupled with a speed direction of 48 beats per minute which is Dr Sawkins' recommendation to the conductor, but which was not in fact followed in the recording. Mr Skidmore took things more slowly at 30-36 beats per minute. There is a change to the bass line figuring for bar 484, where a 6 with a flat sign is shown. Dr Sawkins has attributed this to the Hué edition and no corresponding marking exists in the Cauvin manuscript. Mr Protheroe repeats his point that this adds nothing to the music, because the notes exist already in the melody lines above. The other two interventions claimed by Dr Sawkins are both classified as items of correction and recomposition of the musical text. The first occurs in bar 502, where on the last crotchet in the Cauvin manuscript there is the pitch G in the bass line. Dr Sawkins has corrected this by reference to the Hué edition, where the pitch A appears. In bar 505, on the fourth quaver, Dr Sawkins has added a sharp to the pitch C which is not in the Cauvin version, but does appear in Hué. Mr Protheroe says that Dr Sawkins is therefore adding nothing to the work which was not in either of the sources used. He considers that the editing of the Panis Angelicus also falls within the category of transcription, with the addition of one or two performance suggestions. There is no new music. Dr Sadie has commented more widely on the edition of the Sacris Solemniis . Taking the edition as a whole, he says that Dr Sawkins has to conflate two sources and therefore to work with both versions throughout. The Cauvin edition has (as Dr Sawkins said) a considerable number of errors in it, particularly in the choral music, and is unfigured. It is clear from the summary which Dr Sawkins has provided that the figures he has supplied come mainly from the Hué edition, with a number of additions of his own. Dr Sadie accepts that the editorial contribution of Dr Sawkins in the Sacris Solemniis is less extensive than in the Te Deum and La Grande Pièce Royale , but it is not, in his opinion, simply a substantial copy of the original. Venite Exultemus The first version of this work was composed in 1701. It is a large-scale choral and orchestral work in eight movements, which lasts some 26 minutes in the recording made. The three main sources are a manuscript full score of 1700-1702 held in the Bibliothèque Municipale de Versailles; a second full score version in the Cauvin collection, also housed at Versailles, which dates from about 1715; and a reduced score engraved and printed by Hué between 1729 and 1734. The copyist of the manuscript full score was probably a contemporary of Lalande, but the Cauvin edition is the only one which contains all the instrumental parts. It is apparent from Dr Sawkins' editorial summary that he relied mainly on the Cauvin and Hué editions. The former contained, he said, a number of errors and he lists some 747 corrections made, including 659 to the figured bass, of which 134 were not derived from any of the sources. He also made 27 changes in the form of corrections and recompositions of the musical text. Dr Sadie says that the sources for this work are in general quite accurate and, because they are different copies of the same version of the music, conflicts in the musical text are not a problem. There were a small number of wrong notes to be corrected and the figuring had to be added and supplemented to ensure clarity. He concludes that the editorial changes and additions are not far-reaching, but are large in number. Overall it is less than for the other three works, but it still required skilled and specialist editorial work. Dr Sawkins accepted that most of the work on the Venite related to the figuring for the bass line. He did not have to compose any additional music or parts as such, but corrected a number of wrong notes. Mr Protheroe refers first in his report to the tempi markings inserted by Dr Sawkins. Although obviously important, both experts accepted that performers will use different tempi (as occurred in this case) and that the tempi markings were therefore advisory and could not properly be regarded as part of the edition as such for copyright purposes. I can therefore pass over to the next category of intervention considered by Mr Protheroe, which are the performance indications such as the insertion of the word "doux" at bars 20 and 117. The marking "Bc" (Basso continuo) and "Tous" are also used to indicate respectively where the bass scoring is cut down and where (for example) the chorus is to sing at the same time as the baritone solo. Some but not all of these markings are derived from the sources, but Mr Protheroe's only comment on them is that they add nothing in the way of new material to the musical work. They are to be classed simply as performing suggestions which are not intrinsic to the work. The next category comprises the editing of the figured bass. As already indicated, this accounts for 659 out of a total of 747 claimed interventions. Most are derived from the Hué edition or were added by Dr Sawkins himself. Dr Ponsford has, on his copy of the score, added a number of figures of his own and, in a few cases, corrected the figures provided in Dr Sawkins' edition. Mr Protheroe estimates that Dr Ponsford has added 49 figures himself, but again his main comment is that all the figuring of the bass line is derived from the notes in the lines above and adds nothing new to the work. The other main editorial area falls under Dr Sawkins' heading of correction and recomposition. This relates to the 27 corrected notes. Some of the corrections are said by Mr Protheroe to be obvious and to be dictated by the notes on either side: e.g. the C sharp in bar 52. Mr Protheroe says that in every case the corrections are of small errors in the score which are clearly stylistically wrong. He considers that most of these would have been picked up in rehearsal in any event. They certainly tidy up the music, but they are not in themselves, he says, significant. In summary, Dr Sawkins' work on the Venite is also said to have been largely transcriptive in nature, with the addition of some performing indications. That, then, takes me to the two main questions which I have to decide. They are whether, through his efforts, Dr Sawkins has acquired copyright in the four editions as musical works and (if so) whether his copyright has been infringed by the recording made in October 2001 and the subsequent production and sale of the CD. Copyright There is a clear distinction between the charge made for the hire of sheet music and the royalties (if any) payable to the copyright owner for the right to perform or reproduce the musical work. This point was made very clearly by Ms Sarah Faulder, the Chief Executive of the Music Publishers Association, who said that the distinction was well understood in the industry and that the payment of the hire charge would be generally understood not to carry with it any right to perform or record the work, if still under copyright. This was confirmed by Mr Perry, who said in his witness statement that negotiations about the hire fee have nothing to do with copyright royalties. If the work is in copyright, a royalty will be paid to the composer via MCPS. However, as mentioned earlier, Hyperion has an established policy, based on its view of the law, that no separate copyright royalties will be paid to an editor or publisher who provides an edition of a composer whose work is out of copyright. The editor will be paid an editing fee for the provision of his edition, but no copyright royalties based on the work. Mr Perry sums the Defendants' position up very neatly in his witness statement, where he says that Hyperion's firm view is that it is the composer's work which is recorded and not that of the editor. In support of this position he has produced a document published by the MCPS headed "Editions – Arrangements" which differentiates between the cases where a copyright royalty is payable and those in which the editor is only entitled to what is described as an edition's fee. This suggests that arrangements of existing music involving the addition or rearrangement of the work and transcriptions of a work composed for a single instrument into (e.g.) an orchestral work will qualify for a royalty. The same applies to editions of existing work which involve the completion of work left unfinished by the original composer (e.g. the last act of Turandot ). Also included in this category are the realisation of the figured bass or the re-creation of substantial sections of the original score which are missing due to loss and damage to the original. But the assembly of an original work in its original form from various earlier editions based on scholarly research does not qualify for a royalty unless it includes one or more of the items I have mentioned. In particular, performance suggestions such as tempi and phrasing do not qualify. It was of course for this reason that Mr Protheroe was asked to analyse the four editions, with a view to determining whether the work undertaken by Dr Sawkins involved any additions or alterations to the musical work. The premise on which the defence is based is in essence that unless the edition includes the composition of new music in the form of the notes on the score (and probably not merely the correction of wrong or unsatisfactory notes in the scores used), then no copyright would exist in the edition as a musical work. This is a point on which there is no clear and obvious authority and it has therefore to be approached as a matter of general principle. To succeed in this action Dr Sawkins has to establish that each of his editions is an original musical work within the meaning of s.1(1) of the 1988 Act. Section 3(1) of the Act defines "musical work" as: "a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music." Apart from the cases in which the musical work is commissioned on terms that the copyright belongs to the person placing the commission or where it is composed in the course of employment, the author of the work is the first copyright owner (s.11(1)), but copyright does not exist in the work unless and until it is recorded in writing or otherwise: see s.3(2). Finally, infringement of copyright is governed by Chapter II of the 1988 Act. The copyright owner has the exclusive right to copy and perform or play the work in public and his copyright is infringed by anyone who, without his licence, does any of those restricted acts: see s.16(1),(2). To infringe, however, the Defendant must do the restricted act in relation to the work as a whole or to any substantial part of it (s.16(3)); in the case of infringement by copying, this means reproducing it in any material form: see s.17(2). What the 1988 Act does not do is to define what is meant by music in the definition of a musical work, and it seems to me that this is what this case is really about. Aside from questions of originality and whether Dr Sawkins has expended sufficient time and effort of the kind necessary to obtain copyright according to established principles, the real issue which divides the parties is whether a musical work includes items such as the figuring of the bass, ornamentation and performance directions or is really limited for copyright purposes to the notes on the score, so that in the case of an existing work nothing less than significant rearrangement of, or significant additions to, the melody will create a new copyright in the edition as a musical work. Music is defined in the Shorter Oxford English Dictionary as: "sounds in melodic or harmonic combination whether produced by voice or instruments." Everyone is familiar with Congreve's reference to music having charms to soothe the savage breast, which illustrates that as a matter of language music is the combination of sounds which the performers produce, rather than the notation on the score. This is reflected in the definition of a musical work in s.3 of the Act and its emphasis on the music as the essence of the copyright work. In Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs (3 rd edition), at paragraph 3.55, the editors state that: "Music is primarily intended for appreciation by the ear. Hence whenever a question arises in the field of musical copyright, such as originality or infringement, scholarly analysis may be useful, but the impact on the ear is ultimately more important; what it sounds like matters more than the notes which are written down." This passage is based on the decision of Astbury J in Austin v. Columbia Gramophone Company [1970-23] MCC 398, which concerned the alleged infringement of the plaintiff's copyright in the music of the opera "Polly". This was written by John Gay as a sequel to "The Beggar's Opera" and was contained in a volume which comprised the opera in prose form, together with an appendix in which a number of simple airs were printed with an added bass. These were traditional tunes at the time and Gay composed none of the music. The opera remained unknown and unperformed until 1922, when the plaintiff, in collaboration with a lyricist, arranged and composed the music by altering and extending the existing tunes to fit the new lyrics. The opera was a great commercial success and the Defendants wished to produce the best airs on gramophone records. The Defendants' musical director picked out 20 tunes which he though were likely to be the most popular, but the plaintiff had already reached agreement with another record company for the recording of parts of the opera as band music and refused to allow the Defendants to use his work. They therefore decided to proceed without his consent and sent their musical director to the British Museum to copy from the original Gay edition the tunes which they had selected for recording, in the hope of avoiding any copying of the plaintiff's own music. The expert evidence indicated, and Astbury J held, that the Defendants had deliberately harmonised the Gay material in essentially the same manner as the plaintiff had done, although they had not taken the actual notes used by him. They had imitated the plaintiff's work by using his methods of harmonisation so as to capture the impression made by his own music, on which the production's commercial success was based. This was held to be sufficient to amount to an infringement of his copyright. For present purposes what this case seems to me to illustrate is that questions of originality and infringement cannot be determined simply by a note-for-note comparison of the works in question. A musical work is a combination of melody and harmonies and, as Mr Skidmore said during his evidence, the use of different chords can make a piece of music sound very different. The notes are obviously essential, but they are not the sole determinants of what is heard. I am not therefore persuaded that one can reject a claim to copyright in a new version of a musical work simply because the editorial composer has made no significant changes to the notes, whether by correction or addition. It seems to me that this is too rigid a test and not one which properly respects the reality of what music is. The question to ask in any case where the material produced is based on an existing score is whether the new work is sufficiently original in terms of the skill and labour used to produce it. This is a test to be applied to any work (musical or otherwise) in which copyright is claimed, and the authorities cited to me are all familiar. In her written submissions Miss Reid relied upon the statement at paragraph 3.48 of Laddie, Prescott and Vitoria, in which a musical work is described as: "… in general the product of the mind of a human author which is intended to be performed by the production of a combination of sounds to be appreciated by the ear for reasons other than linguistic content, the originality of the work resulting from the exercise of substantial independent skill, judgment or creative labour expended on its creation as opposed to its mere interpretation." But the authors a little later make the point that the distinction between interpretation and composition is easier to state than to apply. In Hadley v. Kemp [1999] EMLR 589 the issue was whether three members of the group Spandau Ballet were entitled to be treated as joint authors of the songs in which copyright was claimed. The songs had been composed at home by another member of the group who was a keyboard player and singer, but then played and learned by the claimants, who added their own interpretation to the performance. Park J held that their contribution as performers was not an original contribution to the creation of the songs. This was an application of the dictum of Blackburne J in Godfrey v. Lees [1995] EMLR 307, who described the test of joint authorship in these terms: "What the claimant to joint authorship of a work must establish is that he has made a significant and original contribution to the creation of the work and that he has done so pursuant to a common design. See, for example, Stuart v. Barrett [1994] E. M. L. R. 448. It is not necessary that his contribution to the work is equal in terms of either quantity, quality or originality to that of his collaborators. Nor, in the case of a song, does it matter that his contribution is to the orchestral arrangement of the song rather than to the song itself." Two points need to be made by way of qualification to this. The first (which was recognised in Park J's judgment) is that Blackburne J was not referring in the passage quoted to the degree of originality required in order to obtain copyright under what is now s.1(1)(a) of the 1988 Act. He was concerned only to describe the degree and nature of the contribution required in order to establish joint authorship. The second (and related) point is one which is made in the commentary on Hadley v. Kemp in Laddie, Prescott and Vitoria: i.e. that in the case of musical works the distinction between interpretation and composition may be less likely to exist, the more detailed the notation becomes. Clearly the more comprehensive the instructions to the performers in the score are, the less room there will be for the performers to experiment or improvise. By the same token the composer may, by producing a detailed score of this kind, be able to convey to the audience a more precise version of the music he intended. The amount of skill and labour necessary to establish a copyright is not very large and is often expressed in negative terms ("not insubstantial"). Nor need it involve inventive thought, although the use of inventive thought is obviously likely to confirm the originality of the work. What, however, the work need not be is unique, and therefore in the case of a musical, just like a literary, work a rearrangement of an earlier work can easily give rise to a copyright. For this reason it is commonly more profitable to argue that there has been no infringement of the claimant's work, rather than to seek to establish that his work enjoys no copyright due to its own lack of originality. The test of infringement is whether the defendant has taken a substantial part of the claimant's own work. If that work is itself in large measure a copy of an earlier work, the test of infringement will obviously be more difficult to satisfy. The purpose of copyright is to protect from misappropriation the skill and labour of the author which is expended on the production of the original work. Anyone can copy the source material. The point is well summarised in the opinion of the Board given by Lord Atkinson in MacMillan & Co. Ltd. v. Cooper (1924) 40 TLR 186, which was concerned with copyright in textbooks containing excerpts from existing works with notes for students. At page 188 Lord Atkinson said this: "… it is the product of the labour, skill and capital of one man which must not be appropriated by another, not the elements, the raw material, if one may use the expression, upon which the labour and skill and capital of the first have been expended. To secure copyright for this product it is necessary that labour, skill and capital should have been expended sufficiently to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material." In University of London Press Limited v. University Tutorial Press Limited [1916] 2 Ch 601 (a case about examination papers) Peterson J, in a well-known passage, described the requirement of originality in these terms: "The word "original" does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of "literary work", with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work - that it should originate from the author. In the present case it was not suggested that any of the papers were copied. Professor Lodge and Mr Jackson proved that they had thought out the questions which they set, and that they made notes or memoranda for future questions and drew on those notes for the purposes of the questions which they set. The papers which they prepared originated from themselves, and were, within the meaning of the Act, original. It was said, however, that they drew upon the stock of knowledge common to mathematicians, and that the time spent in producing the questions was small. These cannot be the tests for determining whether copyright exists. If an author, for the purposes of copyright, must not draw on the stock of knowledge which is common to himself and others who are students of the same branch of learning, only those historians who discovered fresh historical facts could acquire copyright for their works." In Redwood Music Ltd. v. Chappell & Co. Ltd. [1982] RPC 109 Robert Goff J applied this principle to various arrangements of a popular song, "Zing". It had been submitted to him that an arrangement of an existing work only attracted a separate copyright if it involved great skill and labour. After quoting the passage from the University of London Press Limited case referred to above, he went on as follows (at page 115): "That passage was cited with approval in the House of Lords in Ladbroke (Football) Ltd. v. William Hill (Football) Ltd [1964] 1 W. L. R. 273 at pp. 277-78 per Lord Reid, where he stated that there was no dispute about the meaning of the term "original". It is on this basis, of course, that there may be copyright in works of a comparatively humdrum nature, such as straightforward translations; though of course such copyright may be of little value, because another such work may be produced without difficulty, without recourse to the copyright work. I should add that the decision in Wood v. Boosey , relied on by Mr Bateson, although decided before the Copyright Act 1911 and not therefore decided as a matter of construction of the statutory words "original work", is in my judgement consistent with the test proposed by Peterson J. The case was concerned with the question whether a piano reduction by Brissler of Nicolai's opera The Merry Wives of Windsor attracted a separate copyright in the arrangement, or whether the copyright in the piano reduction belonged to the owner of the copyright in the original opera. In holding that the piano reduction was an independent composition in which the arranger, as author, owned the copyright, the Court of Exchequer Chamber considered the questions whether it was "a new and substantive work in itself" (see p. 229 per Kelly CB.), or whether there was "something in the nature of authorship in Brissler" (at p. 233 per Bramwell B.) – tests at least consistent with that now adopted in relation to the statutory definition under the Acts of 1911 and 1956." Faced with these authorities, Miss Reid principally relied on the decision of the Privy Council in Interlego v. Tyco [1988] RPC 343 . This raises the question as to what constitutes the right kind of skill and labour required for copyright purposes. The case concerned toy building bricks manufactured by Lego in accordance with engineering drawings made for that purpose. The relevant issue for present purposes was whether new drawings made since 1972, which altered the original drawings in various minor respects but added new information addressed to the purchaser in the form of written instructions, gave rise to a new and independent copyright. The Privy Council held that not every minor alteration created a new copyright and that skill, labour and judgment expended solely in the process of copying could not confer originality. There had to be some additional element of material alteration sufficient to make the work an original work. It was the quality rather than the quantity of the addition which merited protection. At pages 371-2 Lord Oliver of Aylmerton said this: "Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality. ………. There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. Of course, even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition. But copying, per se , however much skill or labour may be devoted to the process, cannot make an original work. A well executed tracing is the result of much labour and skill but remains what it is, a tracing. Moreover it must be borne in mind that the Copyright Act 1956 confers protection on an original work for a generous period. The prolongation of the period of statutory protection by periodic reproduction of the original work with minor alterations is an operation which requires to be scrutinised with some caution to ensure that that for which protection is claimed really is an original artistic work." There can be no doubt that Dr Sawkins has applied to the task of editing the four editions under consideration considerable skill and labour based on his own expertise in respect of Lalande. The work was laborious and painstaking and extended over a considerable period of time. The Defendants do not contest this and Mr Protheroe, on whose report their case is based, acknowledges the quality of Dr Sawkins' scholarship. His point (as already elaborated) is that Dr Sawkins, in his quest to create editions which follow as faithfully as possible what he believes Lalande would have intended, has not utilised the right kind of skill and labour. Instead of producing an original work he has to a very large degree reproduced the relevant contents of the source material. This, to use Mr Protheroe's word, is transcription (i.e. copying). It is not the creation of new music. I do not accept this. It is common ground that none of the works included in the CD recording could have been performed by Ex Cathedra using any of the earlier extant scores, except perhaps the Paillard edition of La Grande Pièce Royale . To make the works playable Dr Sawkins has transposed from the source material the common notation and, where necessary, has corrected it. The early source material for La Grande Pièce Royale has the viola parts missing. Dr Sawkins recreated these and, for the reasons already explained, I am satisfied that this did not involve copying from the Paillard edition. Absent this point, these recreated passages are sufficient in themselves to create a separate copyright in favour of Dr Sawkins in his edition of that work. In any event it contains a number of bars where the music differs from the Paillard edition. The Te Deum contains much less in the way of new composition, but the corrections and additions made to the notation were necessary in order to make the work playable. It is no answer to say that they could or would have been corrected by the players in rehearsal. That is not the test. They were in fact corrected by Dr Sawkins as part of his work and they represent the exercise by him of skill and judgment in relation to the choice of alternative notes. The same point can be made about the figuring to the bass line. The figured bass has not been realised, but Dr Sawkins has made over 600 corrections to the bass figuring, of which 319 were his own. Mr Protheroe seeks to categorise this work as not original or inventive, because it is derived from the melody and the lines above. But that misses the point. The work does not have to be inventive. It has to be original. If (as in this case) Dr Sawkins has constructed a figured bass designed to ensure that the correct harmonies are played, it is no answer that the performers could have, by their own efforts, achieved the same result. Dr Sawkins has spared them that effort by the use of his own skill and labour, and in so doing has produced an edition containing the harmonies which, in keeping with baroque music, are essential to its proper realisation and, in the form in which they appear, are not mere reproductions of an earlier version. Only one movement of the Sacris Solemniis was performed and the Panis Angelicus is very short and contains only a handful of alterations. Viewed by itself, this has to be regarded as a more marginal case. If one ignores the speed directions which everyone seems to accept are not part of the music, then it leaves the corrected notes and one correction to the figuring. In qualitative terms these are important. The only question is whether they are too few in number. The scale of the editorial interventions is not sufficient to create a new copyright in favour of Dr Sawkins if the Panis Angelicus is looked at in isolation. But I would have been inclined to the view that Dr Sawkins does have copyright in his edition of the Sacris Solemniis as a whole. If one approaches the matter in this way, then the question is simply whether the use by Hyperion of the Panis Angelicus alone constitutes the taking of a substantial part of the Claimant's work. Given the size of the movement in relation to the work as a whole, I do not consider that this did involve an infringement of the Claimant's copyright. In the case of the Venite most of the work relates to the figured bass, although some 27 wrong notes fell to be corrected. These are said by Mr Protheroe to be obvious changes, but for the reasons already given this criticism is irrelevant to the question of copyright. If one ignores changes to the tempi markings and concentrates on the figured bass, then there are 659 corrections, of which 134 are not derived from the Hué source or elsewhere. Mr Protheroe estimates that the basse-continue player (Dr Ponsford) added 49 figures of his own, but this is relevant only to the question of infringement. As already explained, I do not accept that changes or additions to the figured bass are not capable of adding qualitatively to the musical work and I consider that Dr Sawkins did therefore acquire copyright in his version of the Venite . Infringement As already explained, it is in relation to the question of infringement that the scale of the original material produced by the copyright author comes to be tested. The issue is whether Hyperion has appropriated for itself in the recording it made a substantial part of the Claimant's own skill and labour expended on the creation of the original work. Insofar as the editions contain (for example) notation which can be traced back unaltered to the original sources, then the test is not satisfied. It is to the original editorial input of Dr Sawkins that the inquiry has to be directed. The copyright work must be the source from which the infringing work is derived: see Francis Day & Hunter Ltd v. Bron [1963] Ch 587. I can deal with this issue quite shortly. The evidence of Dr Ponsford is that the scores produced by Dr Sawkins were the only ones used for the recording. He says that he followed these editions when playing the works. This included the chords indicated by the figured bass, although he seems to have added some additional figures of his own. It was not put to him by Miss Reid that the Claimant's editions were not used or that the scale of his own additions to the score meant that he had not performed Dr Sawkins' version of the work. His evidence was not contradicted by any other witness. Mr Skidmore accepted that the Sawkins editions were the only scores used. He also gave evidence about the ability of performers to interpret and depart from a score, but this evidence was given in general terms and not in relation to the specific recording session under consideration. It does not therefore assist me on the question of infringement. On the basis of Dr Ponsford's evidence, which I accept, the case of infringement is established except in relation to the Panis Angelicus , for the reasons already given. The evidence of the experts on this point is less reliable, because neither was present at the recording session and they have to address the question of infringement simply by listening to the CD. Nevertheless there is little in their evidence to contradict Dr Ponsford. Dr Sadie said that the overwhelming majority of editorial interventions marked up by Dr Sawkins were included in the performance. Mr Protheroe accepted that most of them had been included. In the case of La Grande Pièce Royale only three items were omitted and these were only performing indications. The added parts were all performed. In the Te Deum all the bass figures were followed, together with all the corrected notes. Again the omissions were only performing indications and one item of ornamentation. In the case of the Venite two figures out of 659 were omitted and one performing indication. It follows that infringement is made out in the case of three of the works. Consent / Acquiescence The allegation that Dr Sawkins consented to the recording is put in three ways in the defence: i) that Ex Cathedra were permitted to use the editions for the recording session and were therefore entitled to grant a sub-licence to Hyperion to record the relevant works; ii) that Dr Sawkins himself granted an implied licence to Hyperion by accepting an editing fee of £1,278; and iii) that faced with Hyperion's refusal to acknowledge his copyright or to pay a copyright royalty, Dr Sawkins allowed the recording session to go ahead and therefore was to be taken to have consented to the recording and the subsequent issue of the CD. In order to explain why none of these defences succeeds, it is necessary to outline the events leading up to the recording session. By June 2000 discussions were under way between Dr Sawkins and Mr Skidmore about which works might be included in a CD, and Dr Sawkins had provided his summaries of the works. At this time and until May 2001 the general manager of Ex Cathedra was Mr Justin Lee. His main concern was to find a record company which would produce the CD and meet all the recording costs. Prior to this Ex Cathedra had paid the recording costs itself and received royalties, but Mr Lee wanted to find a company which would meet the costs and pay Ex Cathedra for the recording, so that it was not dependent upon the success thereafter of the CD. He met Mr Perry and his late father in about May 2000. He cannot recall if he told them that Dr Sawkins would produce the editions, but he knew that Ex Cathedra had worked with him in the past and that he was a reliable source. Hyperion responded positively to the suggestion of a Lalande recording on these terms and only the question of fees remained to be resolved. On 15 th June 2000 Mr Lee sent Mr Perry an e-mail about the works to be included and raised the issue of an editor's fee. He asked Mr Perry what his normal arrangements with editors were and whether it was a one-off fee. He also said that he wished to tackle this issue early, because Dr Sawkins could be quite "determined" on the question of fees and if necessary he would be able to approach another editor. Mr Perry said that he told Mr Lee that Hyperion would pay an editor's fee, but the amount needed to be agreed. Royalties were not mentioned and, as indicated, Hyperion was not willing in any event to pay a royalty. Mr Lee accepted that at no time, either in 2000 or until he left Ex Cathedra in May 2001, did Dr Sawkins have any direct negotiations with Hyperion. He also accepted that he probably did not tell Hyperion during this period that Dr Sawkins wanted copyright royalties and that, had he done so, Hyperion would have requested another editor. Dr Sawkins' concern in 2000 was to get the editions completed. In early 2001 he was hospitalised for a time, which delayed progress. He accepts that he did not at this stage say to Ex Cathedra that he would only produce the editions on the basis that he was paid a royalty. He said that he expected events to take what he described as an honourable and decent course, and that a royalty would be agreed and paid. For this reason he registered the three new editions with the MCPS and asserted copyright on the face of the editions themselves. By August 2001 the editions were complete and had for the most part been delivered to Mr Skidmore. Mr Lee had by now left Ex Cathedra, but no editor's fee had yet been agreed. Mr Perry said that he assumed from Ex Cathedra's silence on this point that matters had been settled in accordance with Hyperion's usual policy. It was not until 11 th September 2001 that Mr Skidmore sent him an e-mail about the sleeve-notes, which confirmed that Dr Sawkins' editions were to be used. The question of the form of the sleeve-notes was not urgent and could be left until after the recording, but Mr Perry accepted that as of 11 th September 2001 he knew that he needed to agree a fee. It is clear that Dr Sawkins had expected to hear from Hyperion by now. On 6 th August 2001 he wrote to Mr Skidmore enclosing the scores of the Venite and said that there was still no word from Hyperion. On 21 st August he sent to Mr Skidmore an estimate of the hire charges for the use of the scores. In the final paragraph of his letter he said this: "I assume that Hyperion are aware that all three editions are registered with PRS and MCPS and will be eligible for the usual royalties unless they wish to make an offer in lieu." By September Dr Sawkins had still heard nothing from Hyperion, but on 24 th September they received from him a "Recording Hire Contract" with a request to sign it and return a copy to him. This was the first direct contact between Dr Sawkins and Hyperion and it made clear to Hyperion that he was asserting copyright in the editions. The contract sets out a hire charge for the music of £1,350. Clauses 3 and 4 provided as follows: "3. The material is supplied solely for the above-mentioned recording. It must not be used for any other mechanical reproduction whatsoever, including silent or sound films, video, television, or radio transmission unless expressly agreed in writing in advance . Signature of this contract does not authorise Hyperion records or Ex Cathedra to sell on, or pass on the Matrix, nor to reissue such recording at a later date without further negotiation with Lionel Sawkins. All rights in this edition, including publication, performance and subsequent recordings by other parties are retained by Lionel Sawkins. 4. The Recording is notified to the Performing rights organisation of the country of recording, and the name of the copyright owner (Lionel Sawkins) is clearly stated on the recording packaging, the enclosed booklet and the recording itself." Ex Cathedra was also invoiced for the music hire charges. On 12 th October Mr Perry responded to the recording hire contract in an e-mail sent to Lucy Reid, who was the new general manager of Ex Cathedra. In his e-mail he stated that portions of the contract were totally unacceptable to Hyperion and that the company was unwilling to pay any copyright fee. He went on to say that Hyperion's view was that the works of Lalande were out of copyright and that once the recording had been made, the right of the recording would belong to Hyperion. A copy of this e-mail was sent to Dr Sawkins. It obviously caused much concern to Ex Cathedra. Their principal and, in reality, only objective was to get the recording done. The terms agreed with Hyperion were favourable to them and the recording would be important in raising their profile as an ensemble. Mr Skidmore sent an e-mail to Dr Sawkins the following day, asking whether it would be possible for him to say to Hyperion that whatever negotiations took place, Ex Cathedra would be able to go ahead with the recording. Dr Sawkins told him in a letter sent on 15 th October that he accepted that it was desirable that the recording should take place. Both Ex Cathedra and Dr Sawkins wanted (although for different reasons) to produce a successful CD of Lalande's work. Dr Sawkins asked Mr Skidmore to negotiate with Hyperion and said that he would be prepared to consider an alternative to a royalty if Hyperion wished to offer this. The letter makes it clear, however, that Dr Sawkins rejected Hyperion's stated understanding of the copyright position. On the same day Mr Perry wrote direct to Dr Sawkins, agreeing to the hire fee but rejecting the claim to a royalty or other payment based on copyright in the editions. As in the earlier e-mail, the right to release the recording in the form of a CD as its own property was also asserted. Dr Sawkins said he was shocked to receive this letter, but accepted that it made Hyperion's position clear. By now he had taken advice from Messrs Finers Stephens Innocent and on 17 th October they wrote to Mr Perry in these terms: "To date, notwithstanding Hyperion's wish to record the Works, no agreement has been reached between our client and Hyperion according to which our client has consented to Hyperion's use of his copyright material. In the circumstances, please be aware that any unauthorised use of our client's Works (and any infringement of his copyright therein) will entitle our client, at his discretion, to seek injunctive relief and/or damages amongst other remedies. Please accept this letter as notice that should Hyperion proceed on the basis outlined in your letter of 15 th October 2001 addressed to our client, a copy of which is attached, we anticipate receiving instructions to fully protect our client's rights. Without prejudice to the foregoing, our client fully and unequivocally reserves his rights." At this point Mr John Pulford also became involved. He was the Chairman and a non-executive director of Ex Cathedra. He was contacted by Lucy Reid and told that there was a problem about the recording. He said that he became involved with a view to enabling the recording to proceed. To this end he telephoned Dr Sawkins and asked him whether there was any way in which the recording could go ahead. Dr Sawkins told him about his claim to a copyright royalty and Mr Pulford offered to mediate in the dispute with Hyperion. Dr Sawkins' evidence (which I accept) is that he believed that Mr Pulford would be able to resolve matters satisfactorily. Mr Pulford confirmed to me that he was not to act as an agent for either party in these discussions, but would simply take on the role of an honest broker. On 17 th October he sent a fax to Mr Perry, in which he said that he had told Dr Sawkins that Ex Cathedra would buy out his right to royalties and that the earlier recording hire contract could therefore be amended by varying clause 4. This was copied to Dr Sawkins, who sent a fax to Mr Pulford in reply, stating that the proposal made to Hyperion did not fully comply with what he had agreed and that Hyperion in any event would need his consent in relation to film rights and the like. He did, however, send an amended invoice for the hire charges to Hyperion, which states as one of its terms that: "Payment of this invoice relates to use for the above-mentioned recording and does not entitle the hirer to use the recording for any other mechanical reproduction whatsoever unless expressly agreed in writing in advance. Payment of this invoice does not entitle the hirer to sell on or pass on the Matrix, nor to reissue such recording at a later date without further negotiation with Lionel Sawkins. All rights in these editions as notified to PRS Ltd and MCPS Ltd including publication, performance and subsequent recordings by other parties are retained by Lionel Sawkins" Mr Perry told Mr Pulford that he was not prepared to countenance any restriction on future reproduction rights, and the amended contract was never signed. However, Mr Pulford did not make contact with Dr Sawkins about this, nor did he make any attempt to follow up the suggestion that Ex Cathedra should buy out his right to a royalty. Mr Pulford accepted in cross-examination that this suggestion was made in an attempt to ensure that the recording went ahead, and it is clear to me that Ex Cathedra really played both sides off to ensure that the recording did proceed. Once it had taken place, Mr Pulford said that he took no further part in the matter. Ex Cathedra could then leave it to Hyperion and Dr Sawkins to sort out their differences themselves. It is clear that Dr Sawkins expected Hyperion to sign the contract as amended by Mr Pulford. When this had not occurred by 19 th October, he told Mr Skidmore that the remaining recording sessions (which had begun that day) might be in danger. In the event he did not remove the music from the stands and allowed the recording to be completed. When asked about this, he said that it was because he thought that he was protected and could prevent the future use of the recording based on his copyright. He also believed that Mr Pulford was attempting to resolve the issue. When it eventually became clear that Ex Cathedra could not assist in this, he wrote to Mr Perry on 6 th February 2002, before the CD was made, asking that his copyright be acknowledged and reaffirming his rights as set out earlier in the solicitors' letter. It is clear to me that both Dr Sawkins and Hyperion went into the recording session to some extent at cross purposes. Due to Mr Pulford's intervention Dr Sawkins was led to believe that Hyperion would agree to the contract on amended terms which still preserved his right to control future reproduction of the recording. Mr Perry, on the other hand, had always made clear to Ex Cathedra his rejection of that position. But these circumstances make it impossible to spell out of the mere fact that the recording session was allowed to go ahead any licence or other agreement to the production by Hyperion of a CD, except upon payment of an appropriate copyright royalty. Dr Sawkins gave Ex Cathedra no authority to grant such a licence to Hyperion, nor is there any evidence that it did so. Once the recording session was over and they were paid, Ex Cathedra's involvement was at an end. The fee of £1,267 was paid, but the invoice makes it clear that this was not in payment for the grant of a licence to make further copies of the recording. Not only was no licence ever given of the kind alleged, but it is also apparent from the evidence that Hyperion never believed it had such a licence. Its position throughout was that Dr Sawkins had no relevant copyright to assert and that no licence was needed in order to produce the CD. Mr Perry never therefore sought a licence and was unwilling even to sign the amended contract put forward by Mr Pulford. These defences therefore fail and Dr Sawkins is entitled to judgment on his copyright claims in respect of La Grande Pièce Royale , the Te Deum and the Venite . Moral Rights Dr Sawkins also alleges that his moral right to be identified as the author of the work comprised in the editions has been infringed. The booklet enclosed with the CD contains the line: "With thanks to Dr Lionel Sawkins for his preparation of performance materials for this recording." Mr Norris submits that this is inadequate. It does not identify the Claimant as the author of the musical work, as required by s.77(1) of the 1988 Act. The reference to "performance materials" is unclear and considerably understates what Dr Sawkins has in fact done. He also makes the point that where the author, in asserting his right to be identified under s.78, specifies a particular form of identification, then s.77(8) requires that form to be used. In this case the assertion of the right to be identified was made in the letter of 6 th February 2002, in which Dr Sawkins said that the sleeve-notes must carry the legend: "© Copyright 2002 by Lionel Sawkins". This has not been observed. I agree with these submissions. Although Dr Sawkins is named, he is not identified as the author of the copyright work. The sleeve has to clearly convey Dr Sawkins' authorship to all possible readers and not simply to those who might have some inside or particular knowledge of what to infer from the words that have been used. The fact is that there was no intention of identifying Dr Sawkins as the author of the musical work and the sleeve-notes do not do so. This part of the claim also succeeds. Conclusion It follows that there will be judgment for the Claimant in relation to his editions of La Grande Pièce Royale , the Te Deum and the Venite , but not the Panis Angelicus . Absent agreement, I will hear Counsel on the question of the form of relief to be granted and costs. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII