Hyperion Records Ltd v Sawkins: CA 19 May 2005

The claimant had developed historical musical works for performance. They were published by the defendant, by means of recordings of a performance from the scores he had prepared – so called ‘performance editions’. The many hundreds of hours expended, involved transcription of the scores into modern notation and interpretation of the composers shorthand. The publisher appealed against a finding of copyright infringement, saying that the claimant had not created an original work capable of being protected under copyright law.
Held: The appeal failed.
Jacob LJ said: ‘copyright can be used to prevent copying of a substantial part of the relevant form of expression, but it does not prevent use of the information, thoughts or emotions expressed in the copyright work. It does not prevent another person from coincidentally creating a similar work by his own independent efforts. It is not an intellectual property monopoly in the same sense as a patent or a registered design. There is no infringement of copyright in the absence of a direct or indirect causal link between the copyright work and the alleged copy. ‘
Copyright did subsist in the works prepared by the claimant, and the recordings did infringe that copyright. The short thanks given to the claimant in the CD packaging did not sufficiently acknowledge his moral rights to be identified as the author. The sleeve merely thanked him without acknowledging his authorship.
‘Originality’ for the purposes of CDPA does not equate to novelty: ‘work ‘need only be ‘original’ in the limited sense that the author originated it by his efforts rather than slavishly copying it from the work produced by the efforts of another person’.

Mummery, Mance, Jacob LJJ
[2005] EWCA Civ 565, Times 23-May-2005, [2005] 1 WLR 3281, [2005] 3 All ER 636
Copyright Designs and Patents Act 1988 1 9 77
England and Wales
Appeal fromSawkins v Hyperion Records Limited ChD 5-Jul-2004
The claimant had edited ancient music scores so as to be ready for performance for the defendant. He asserted a copyright. The defendants argued that the contribution was too little to create a copyright.
Held: To succeed Dr Sawkins had to . .
ApprovedWalter v Lane HL 6-Aug-1900
Reporter of Public Speech Owns Copyright I
A reporter attended a speech by Lord Rosebery. His report of the speech was republished in the Times after another journalist who had not been present published a verbatim copy. He claimed a copyright in the work he produced.
Held: The first . .
CitedExpress Newspapers v News (UK) plc 1990
If summary judgment is given to one party on his claim, it must also be given on a counterclaim made on the same basis by the defendant. The principle that a party to litigation cannot ‘approbate and reprobate’ (or ‘blow hot and cold’) can curtail a . .
CitedBlacks v Murray 1870
The court considered what constituted originality for a literary work, and set down a test. It was necessary to make extensive and substantial alterations in order to create a new literary work, not just a few emendations and the addition of a few . .
CitedHadley v Kemp 1999
Three members of the group Spandau Ballet sought 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 . .
CitedInterlego AG v Tyco Industries Inc PC 5-May-1988
How much new material for new copyright
(Hong Kong) Toy building bricks were manufactured by Lego in accordance with engineering drawings made for that purpose. One issue was whether new drawings made since 1972, altering the original drawings in various minor respects but added new . .
CitedLadbroke (Football) Ltd v William Hill (Football) Ltd HL 1964
What is substantial copying
The plaintiff alleged copying of their football pools coupons and copyright infringement. The issues were as to the extent of copying required to establish infringement, and whether it was proper to look at the several parts of the work separately. . .
CitedAustin v Columbia Gramophone Company 1917
Infringement of the plaintiff’s copyright in the music of the opera ‘Polly’, written by John Gay as a sequel to ‘The Beggar’s Opera’ was alleged. A volume comprised the opera in prose form, with an appendix including simple airs with an added bass. . .
CitedAutospin (Oil Seals) Ltd v Beehive Spinning (A Firm) ChD 9-Aug-1995
An expert witness in a copyright case is under a duty to approach his task seriously. What is substantial reproduction in copyright depends on the nature of the copyright work in issue. . .

Cited by:
CitedBaigent and Another v The Random House Group Ltd (The Da Vinci Code) ChD 7-Apr-2006
The claimants alleged infringement of copyright by the defendant publishers and author in the plot and otherwise in the book ‘The Da Vinci Code’. They said that their own work had been copied substantially, using themes and copying language. The . .
CitedForensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
The claimant alleged infringement by the defendant of assorted intellectual property rights in its database. It provided systems for recovering materials deleted from Nokia mobile phones.
Held: ‘the present case is concerned with a collection . .
CitedThe Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others ChD 26-Nov-2010
The claimant newspapers complained of the spidering of the web-sites and redistribution of the materials collected by the defendants to its subscribers. The defendants including the Public Relations Consultants Association (PRCA) denied that they . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property

Leading Case

Updated: 09 November 2021; Ref: scu.225007