Dr Lionel Sawkins spent a total of 2.5 years trying to get Hyperion to talk, repeatedly offering to negotiate a single sum in lieu of royalties, without any response. In an interview with the Los Angeles Times last March, Simon Perry (Hyperion’s owner) admitted that this was so but he let the matter go to Court because he wanted to find out whether he was ‘right or wrong’ in his stance about copyright. Then he went further and appealed the judgment. Thus the legal bill he has incurred is entirely self-inflicted. He has also inflicted a long period of stress on Sawkins — as have Jeffrey Skidmore and the Chairman of Ex Cathedra whose conduct contributed to this dispute in the first place, and who were criticised by the Judge for ‘playing both sides off in order to secure the recording’. Sawkins prepared these editions without any written contract believing that previous practice would obtain (he had prepared editions for an earlier recording of Lalande motets by Ex Cathedra for the ASV Label, and have been receiving royalties on that CD) and not until a few days before the Hyperion recording sessions did Skidmore inform him of the stance Hyperion were taking. Sawkins never asked for any commissioning fees from the record company or from Ex Cathedra, assuming, as the Judge said, that matters would follow ‘an honourable and decent course’. He was tricked!

Nor was Sawkins ever paid any editing fee, despite Hyperion’s assertions they did so. The only payment ever made was for the hire of the actual music copies (charged at about 40% of the commercial rate charged for Lalande motets material by, say, Novello or Faber) as, in addition to having prepared the editions, he also self-published them (computer-engraved to the highest standard, printed and bound – almost 300 copies in all). (See below for the MPA and the legal view of the distinction between hire fees and royalties.) If he had worked at an hourly rate equal to the UK statutory minimum wage, (which studio producer, composer, or anyone else in the CD industry would do so?), the editing fee alone would exceed £6,000. If a more appropriate rate was calculated, it would be much more, but apparently, editors should do it all for the honour and glory, according to Hyperion.

It was also open to Hyperion to seek out lawyers to act on a conditional fee basis. The CFA arrangement mainly exists of course to enable individuals like Sawkins (a retired teacher living on a pension; his editing and hiring just breaks even, and he doesn’t pay himself anything) to stand up to powerful, multimillion-pound companies with large advertising (and propaganda) budgets.

Sawkins has spent more than 30 years making available for the first time more than 40 major works, which have been performed by more than 60 organisations worldwide and some of which have been recorded on several other major labels (paying the very modest royalties permitted by the Copyright Tribunal). What is Hyperion’s unique problem?

Sawkins has twice been honoured by the French Government for his work and his ‘contribution to the diffusion of French music in the world’.

In the actual Appeal Court judgment, Lord Justice Mummery very lucidly deals with what this case was about and equally what it was not about; this can be seen at http://www.bailii.org/ew/cases/EWCA/Civ/2005/565.html. The Original judgment of Mr Justice Patten can be found at http://www.bailii.org/ew/cases/EWHC/Ch/2004/1530.html

and includes at para. 49 both the point ‘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’ …’made very clearly’ by the CEO of the MPA and the clear admission by Perry ‘that negotiations about the hire fee have nothing to do with copyright royalties’.