Larry Lessig has blogged about the precarious financial position of the British record label Hyperion Records, now that it is on the losing side of a copyright dispute in England involving releasing recordings of some very old public domain works — which were put into playable, modern form by a very contemporary musicologist, Dr. Lionel Sawkins.
C.E. Petit at Scrivener’s Error first put me onto this case, pointing out that while the principal judgment in the case treads needlessly close to the discredited “sweat of the brow” theory in affirming the musicologist’s copyright, the judgment by Lord Justice Jacob restores some order by filtering “sweat” arguments throught the acceptable “originality” frame. The musicologist in this case is akin to a translator; the professional translator applies skill and judgment to produce the final product; and that skill and judgment all but necessarily involves sufficient “originality” to justify copyright:
This was not mere servile copying. It had the practical value (unchallenged) of making the work playable. He re-created Lalande’s work using a considerable amount of personal judgment. His re-creative work was such as to create something really new using his own original (not merely copied) work.
In addition to the “sweat of the brow” approach, and this related “originality” approach, the principle judgment also dedicates a good amount of space to responding to Hyperion’s main argument, which was that Dr. Sawkins did not produce a new work of “music” within the meaning of the statute. The principal judgment addresses what “is” music, and the judgment concludes that whatever it is, Dr. Sawkins has produced it.
Interesting, isn’t it, that we are still debating the meaning of the traditional foundations of copyright? Should courts focus on the author’s process (exercise of skill and judgment), on the product (is it a distinct piece of music?), or on free riding by the accused infringer (sweat of the brow)? In this particular case, the important question, I think, is how to arrange the legal rights in order to maximize the availability of Lalande’s original compositions to contemporary audiences. It’s not enough, I think, to conclude that the goal is served by granting all rights automatically to Sawkins. But the style of argument and reasoning in English opinions rarely admits that kind of consideration, at least not explicitly.