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The Lebrecht Weekly


Visit every week to read Norman Lebrecht's latest column. [Index]

Whose music is it anyway?

By Norman Lebrecht / April 13, 2005


Pity the poor judges. Hardly a month passes without someone in a black gown having to lay down the law on matters so fluid they might be more fittingly served in a saloon bar. At stake is our access to musical heritage and unless some judge draws a line in the sand pretty soon we could all go blundering back to ignorance and deprivation.

Last week in Albany, the Court of Appeals of the state of New York ruled unanimously that old recordings could be issued on compact disc only by their original label. Sounds reasonable? Wait for the handcuffs.

Over the past decade we have enjoyed a renaissance in the appreciation of historic performances. Naxos, the impulse-buy classical label which sells discs at five pounds, dollars or euros the world over has been reissuing early recordings that had been long deleted by the music biz, which functions on a flow of hyped-up novelty. Ownership of these antiques was uncontested, their perceived value meagre.

Using mint exemplars from Yale University Library, Naxos restored to circulation the imposing sound of Rachmaninov in his own concertos and the more hesitant tones of Prokofiev at the piano. The proud voices of Elisabeth Schumann and Kirsten Flagstad found new admirers; the formative conductors Felix Weingartner and Willem Mengelberg returned to our shelves. These recordings had gathered dust for a generation. Some had never been transferred onto LP, let alone CD. Their restoration was revelatory.

So long as Naxos messed with esoterica, the major labels turned a deaf ear. But Klaus Heymann, the Hong Kong-based label’s German owner, was keen to prove a point. He encroached on such EMI memorabilia as Menuhin in the Elgar concerto, Artur Schnabel in the Beethoven sonatas and Casals in the Bach suites, which had never fallen out of print.

Suddenly, 50 years of mechanical copyright, which is the European norm, did not seem such a long time. Kathleen Ferrier, one of Decca’s all-time bestsellers, is out on Naxos. The debut operas of Maria Callas – I Puritani, Norma, La Sonnambula – are also there and Glenn Gould’s inimitable 1955 account of the Goldberg Variations will fall free come New Year. Callas still sells more CDs than any opera singer alive today and Gould’s icon has pervaded contemporary art and film. Naxos may have begun with educative intent but now it was peddling prime product.

EMI took the case to the US, where mechanical copyright is protected for 75 or 95 years at movie industry insistence. The victory won last week by its Capitol subsidiary has drastic implications. Even if copyright expires, the court ruled, common law can be applied to assert the rights of the original owner. That means, in effect that EMI regains perpetual control of all recordings all the way back to Edison.

Heymann is hoping to overturn the verdict at the US Supreme Court, but the process will be costly and long. EMI, triumphant, is returning to Albany to seek ‘substantial damages’ against Naxos and the destruction of its historical stock. It will also mount a massive lobbying campaign in Brussels to harmonise European copyright with US law, arguing that in an MP3 world rights protection must be universal. EMI bosses are absolutely gung-ho. Quite apart from securing the Callas jewelbox, the judgement protects the early Beatles releases from potential predators in eight years’ time.

The losers, apart from Heymann, are millions of listeners who regained access to treasures of the past only to have them locked away again. EMI promise to keep more oldies in circulation but, without competition from Naxos, prices will rise and the glories of past masters will be constricted to a moneyed minority.

That reversal could be compounded by a judgement expected imminently in London. In May last year, a small and rather beautiful record label, Hyperion, was sued by an academic, Dr Lionel Sawkins, who demanded royalties for recordings of music by Michel-Richard de Lalande. The once eminent French composer died at Versailles in June 1726 and cannot, even under New York appellate law, hold claim to any copyright.

Dr Sawkins, however, edited the modern edition of his score and claimed to have made enough of a contribution to be its beneficial owner. After a six-day hearing last year, Mr Justice Patten agreed that although Sawkins had not altered any of Lalande’s notes, his edition was ‘sufficiently original in terms of the skill and labour used to produce it.’

Hyperion is now awaiting a Court of Appeal decision, originally due this week but now postponed for a month. The case may ultimately hinge on the musical meaning of the word ‘realisation’. If Sawkins wins again, the case will cost Hyperion a million pounds, jeopardising its survival.

Musicians await the decision with trepidation. Without invading matters that are rightly sub judice, many Baroque practitioners have rallied to Hyperion’s side, praising the label for bringing the past to light by reviving the likes of Lalande who, the least of three fine composers at the Sun King’s court (Lully and Charpentier were the more prominent), might never had been rediscovered but for its advocacy.

They fear that if copyright in a long-dead composer were granted to a note picking editor, vast swathes of heritage might fall into private or corporate hands. The Austrian government could, for instance, by virtue of the manuscripts it owns, assert its legal writ over performances of Mozart, Beethoven and Brahms.

No-one envies the judges their headache for the field of copyright has become quagmire. What was once a simple acknowledgement of reward for creative effort has been complicated by such metaphysical concepts as ‘moral’ rights and intellectual ‘property’. Much of what is being argued in court strays beyond the original intention of legislators to balance the rightful authority of a creator with the need to allow the public proper access to the essentials of civilisation.

In an unrelated case in California, lawyers for various interests are trying to copyright the term ‘yoga’, restricting access to corporately sanctioned practitioners. There are passages in these court documents where the law is made to look like a braying ass.

That is what judges are there to stop. Whoever ends up owning what, the law must make common sense and must ensure that the protection of copyright does not block the public footpath to cultural enlightenment.

Visit every week to read Norman Lebrecht's latest column. [Index]



(c) La Scena Musicale 2001