A couple of new articles on Andante at the moment offering more thoughts on the Sawkins/Hyperion case. The first, by Bernard D. Sherman unpicks what this has to do with intellectual property in music – although he makes two oft-repeated mistakes: that all copyrights are the same, and that having ownership actually obliges you to charge for those rights. (Musicologists I’ve spoken to about this simply resent Sawkins for having the gall to charge for his work. Not the done thing, you see.) The fact is that intellectual property law is a horrible mess and doesn’t do anyone many favours. Like every recent IP/copyright ruling (even Grokster) Sawkins v Hyperion is hardly going to be the last word on the subject. Take it all as a work in progress (that, hopefully, is going to be torn down and rebuilt from scratch one of these days). At least Dr Sawkins has added the voice of us humble musicologists to the debate. (Because you’d better believe there are people very happy to screw us.)
The other article – by Mark Perlman – is, I think, more convincing. Perlman is an ethnomusicologist, so questions of ownership, intellectual property and copyrights are a central concern of his methodology, and he lucidly argues for the similarity between what he does and what an early music editor does. And, praise the Lord, he is the first musicologist I’ve read to make that crucial distinction between one type of copyright ownership and another:
technically speaking, Dr. Sawkins doesn’t own the Lalande motets which Hyperion recorded, in practice he owns the only paved road leading to them, and those who wish to drive there (so to speak) will have to pay his tolls. Intrepid backpackers who have the time (and musicological expertise) are free to scramble through the metaphorical brush to make their own performing editions, but few will try. Though if Mr. Ross knows a public-spirited musicologist specializing in the French Baroque, perhaps he can persuade her to make her own edition and post the PDF files on the Web for all to use. I think the domain name “freelalande.org” is still available. [emphasis mine]
That is precisely the point. The ‘ownership’ that Sawkins legally makes claim to is for his work on preparing an edition of the score required to produce Hyperion’s commercial recording. It is not on Lalande’s score itself – this has long been in the public domain, even if most of us wouldn’t be able to play from it. What’s more – so long as direct plagiarism is not involved – any one of us can prepare a performing edition for ourselves. (Although frankly I’m glad someone else does that kind of work.) And, what is even more, we can hold the rights to that edition and the legal framework exists for us to insist that our edition remains available to all and distributed only for free. Yes, that seems like an over-complex solution, but Creative Commons was developed precisely for the very reason that IP law is a bloody mess. It’s a bit of a hack, but until we rewrite the statute books from the very beginning once more, it’s the best that we’ve got. And, hey, even musicologists who want to keep their work freely available, non-for-profit, can do so with CC because the law now recognises their rights to do so. And for that, Sawkins has done them a favour.