Two recent cases have shown the difficulty for publishers and universities to determine definitively where copyright applies.
A student was awarded a financial settlement from the university theater school she attended due to its refusal to allow her to perform in-classroom monologues with removal of all vulgarity and swearing. The school, the University of Utah, stated that in addition to the pedagogical reasoning, an additional reason for not allowing changes in these school assignments was copyright law – she was warned not to change text in copyrighted plays. The pre-settlement case is at Axson-Flynn v. Johnson, 2004 U.S. App. LEXIS 1619 (10th Cir. 2004)
The university's copyright reasoning was based on a faulty interpretation that because it may be a copyright violation to change a playwright's words without written permission in public, for-profit performances, a student in an in-class, educational setting was not allowed to change the text. This debate about presenting a work only as originally created is very similar to that of the recently introduced selective editing systems, such as ClearPlay, for movies which are opposed by Hollywood directors, writers, and studios.
Universities have become so frightened of violating copyright law that they are wary of allowing uses of materials that are acceptable under copyright. Peter and Siva’s discussion of this issue is here.
However, not carefully determining all aspects of copyright can have serious consequences.
In a recent case in the UK, an editor of several 300-year old musical pieces has claimed (and been awarded by a trial court) copyright in these works as the author of a musical work within the meaning of the 1988 Copyright, Designs and Patents Act. According to one article, the "British High Court judge's interpretation of copyright law effectively handed the rights ... to an academic who edited the original scores" of Michel-Richard de Lalande, a composer assigned to the chapel of Louis XIV at Versailles from 1683 to 1726. The judge stated that he was unpersuaded "that one can reject a claim to copyright in a new music work simply because the editorial composer has made no significant changes to the notes." The decision, which can be found at Sawkins v Hyperion Records Ltd,  EWHC 1530 (CH),  All ER (D) 23 (Jul) (1 July 2004), has been appealed.
The influence of an editor on a musical piece can be great, leading to problems determining a clear line of authorship:
In the case of early music, some form of editing is often required, particularly in the case of rarely performed music such as Lalande's. Original sources may be scattered around libraries in different countries, they may be incomplete or illegible, or one version may contradict another. An editor is then needed to prepare what is known as a performing edition from the various sources. He or she must make informed decisions about any ambiguities or contradictions, and in cases where individual parts have gone missing, may even have to compose new ones in the original composer's style.
The editor has claimed over 300 hours working on each piece. The publisher claims the new edits were very similar to an earlier reconstruction from the 1960s.
This case is causing serious repercussions in the musical publishing world.
Simon Perry, director of Hyperion Records, who estimated that less than 5 per cent of the Lalande CD was original work by Dr Sawkins, said: “This is a potential catastrophe for the record business.”
He said the case would take its toll on classical music and pop: “If someone can take an original piece of work and alter it with a few notes, what’s to stop someone doing that with any piece of music? “They could take a Beatles song that goes out of copyright, add a few drum-beats and claim copyright. The same is true of compositions like Beethoven’s Fifth.”
One of the most interesting aspects is like the Indiana University Press book-pull, this recording was considered important, but is now in the grey area of materials that exist – but presently due to legal dispute have an uncertain legal use. It is a shame that works are forced into this grey status – with the public denied the opportunity to read and listen to these materials. Or in cases like the copyrighted Declaration of Independence, no additional creative process has been added to the material -- merely restrictive coding.
Perhaps it is time for a specialized court, similar to the patent court, to help determine when copyright has been violated or changing the role of the copyright office so that it could help to mediate disputes before they go to court. Or even a centralized bank of copyrighted materials and their acceptable uses. Considering the increasingly international of intellectual property disputes, it may be time for an international body to settle these disputes.
Unfortunately, the present system allows only for the cases listed above to be anecdotes – or cautionary tales, but without a definitive statement of what is or is not generally allowed under copyright law. Users, publishers, and producers need a much better way of communicating with each other.