It’s very early days for picking over the wreckage, but the general consensus, not surprisingly, is that this is awful news for the classical music industry, not least because Hyperion are an extremely valuable asset, and their loss will be ours too. However, putting their fate to one side, as one sadly must, what might the longer-term ramifications be? These are my (as you you know, non-lawyerly) first attempts at optimism:
As Hyperion themselves acknowledge, the actual fees to be paid to Lionel Sawkins for use of his score edition are pretty minimal – would this additional payment have much real effect on future performances of music in edition? Possibly not; editors’ fees could simply become another payment, along with performers’, sound engineers and so on. The instinct to save money could in fact foster a strong generation of performers able to play from the original scores, able to read figured bass, improvise Baroque ornamentation and so on. That would be a victory for the authentic performance movement at the least.
The other thing that crosses my mind is that, contra many recent developments in music copyright ruling, this represents a victory for the creative musician over the record company. Not that I’m for a moment comparing Hyperion to the RIAA Mastodons, but what goes for one will go for the other, surely? In his corrective, editorial way, Sawkins has played the same role as a cover artist, remixer, whatever. Were this the soon-to-be-out-of-copyright Beatles catalogue, and not works by the 18th-century composer Michel-Richard de Lalande, there would, I’m sure, be many musicians proclaiming this as the greatest thing since Edison’s phonograph. Also, if the copyright threshold is so low that a few changes (corrections, not even creative alterations), does this have ramifications for Capitol v Naxos? Probably not, since the clincher there was the difference between US and UK copyright legislation, and the Hyperion case is UK. But even so, Naxos’ cleaned-up recordings of Menuhin are, ontologically at least, the same as Sawkins’ editions of Lalande.
This is not to put an unnecessary gloss on what is, no doubt, a momentous ruling for the score-based music industry, but at times like this I’m a pathological devil’s advocate. The above is surely wishful thinking, right? I think On an Overgrown Path has it more right than I: “A good definition of lose/lose for the music industry if ever there was one.”