Leslie Chong is a J.D. student at Osgoode Hall Law School
On 17 November 2010, IP Osgoode hosted Professor Fisher’s lecture about the 18th century copyright infringement lawsuit involving piano trios written by classical composers Franz Joseph Haydn and Ignaz Pleyel. While the court documents of the case had long been lost and only recently rediscovered, Professor Fisher’s lecture highlighted some of the copyright problems that existed in the 1700s and that still persist today. Copyright issues such as the distinction between ownership and authorship, the rights of foreign authors and the concept of ‘custom of the trade’ can be chronicled to as early as the 18th century.
In order to better understand the legal concepts of the case, it is first important to grasp the facts of the lawsuit between two music publishers – (a) William Forster & Son and (b) Longman & Broderip – in late 18th century London. Franz Joseph Haydn was a celebrated Austrian composer in the 18th century, and has often been referred to as the “Father of the Symphony” for his contributions to classical music. Aside from his accomplishments as a composer, Haydn also served as a mentor and teacher to aspiring classical composers. He was a mentor to renowned composers such as Beethoven and Mozart, as well as a lesser-known composer by the name of Ignaz Pleyel. In the 1780s, William Forster, a music publisher in London, had commissioned Haydn to submit a set of piano trios for publication. In 1785, his work was released under the title ‘Opus 40’ to which Haydn had also granted Forster a declaration of title that certified and declared that Forster was the sole proprietor of all rights in ‘Opus 40’. Following Forster’s publication of Opus 40, Longman & Broderip published an identical version and Forster filed a bill of complaint (the equivalent of today’s statement of claim) alleging that they owned the copyright in the ‘Opus 40’ compositions. In their defense, Longman stated that plagiarizing was merely a custom of the trade, and that since the composition was already in the public domain, Forster had no rightful claim of infringement. It is also important to note that following Longman and Broderip’s publication of ‘Opus 40’, Pleyel had himself released the same piano trio under his own name but under the title “Opus 24”. The first two composed by himself, and the last by Haydn, as with the ‘Opus 40’ publication.
All of this to say – a lawsuit between the two music publishers arose as a result of Haydn’s works “Opus 40”. In the course of the trial, however, Haydn admitted on two occasions that Pleyel (his apprentice and student) was the true composer of the first two works in ‘Opus 40’. Despite this admission by Haydn, Professor Fisher points to some academics who suggest that the publishers had deliberately concealed the true authorship and insisted on maintaining the fiction that Haydn was in fact the original author – likely an attempt to increase sales, since more money would be made from a master’s composition than from the pupil’s. As Professor Fisher points out, Haydn’s admission appeared to cause no furor or controversy, and Pleyel had never once claimed authorship or ownership over the two works in ‘Opus 40’ that he had arguably composed. But why?
Professor Fisher contends that the answer lies in the relationship between Pleyel and Haydn during the former’s training as an apprentice. Through the English common law rights governing a master-servant relationship, a similar set of rights extended to apprenticeships: an apprentice would be the original author of the work, while his master (the teacher) would be the owner of the works. As an apprentice under Haydn’s tutelage, it is surmised that Pleyel had left the two compositions subsequently published with his former teacher after his training was complete. Haydn had subsequently included those works, which he legally owned, to Forster when he had been commissioned to create his piano trios. This dichotomy between ownership and authorship is still alive today, and Canadian courts have attempted to clarify the rights in works completed under employee-employer and student-professor relationships.
The lawsuit was eventually settled without a final judgment from the courts, and Professor Fisher argues that this was likely because both parties were uncertain as to how the courts would rule and wished to avoid an unfavorable result. In particular, Professor Fisher suggests that Forster was wary of the fact that London courts would be reluctant to enforce the copyright of an Austrian composer in London, and was thus more willing to enter into a settlement agreement as a result. This concept of foreign copyright and international intellectual property is especially relevant in today’s technological age where works may be infringed in countries where intellectual property laws are not on par with each other.
While Professor Fisher’s lecture may delve into copyrightable subject matter outside the scope of today’s general knowledge, the concepts and underlying tensions in our copyright law still remain the same. It remains to be seen whether the problems with our current copyright laws will be effectively addressed in ongoing copyright reform efforts (such as with Bill C-32).
Full video coverage of Professor Fisher's talk, including the question and answer period, can be accessed on IP Osgoode’s Events Archive page.