A little while ago, I illustrated the concept of a transformative copyright work by referring to what Rachmaninov did to Pagannini's Caprice no 24. A little while? It was October 2017. Now another illustration of an important aspect of intellectual property law from the world of music has come along.
This time my inspiration came from Record Review on BBC Radio 3 a few weeks ago (on 14 December 2018, to be precise - if you go to the Radio 3 website you might still be able to find the programme, perhaps in the podcast version). The work being reviewed was Richard Strauss's Till Eulenspiegels lustige Streiche. It's a piece I came to love when I was still at school (the horn solo particularly appealed), and the three boxed set of LPs of Strauss's Orchestral Works by Kempe and the Dresden Staatskappelle were quite an early part of my record collection. But I digress, as usual.
About 17 minutes and 20 seconds into the podcast, the reviewer (the composer William Mival) is considering the 1959 recording by the New York Philharmonic under Leonard Bernstein - another of my favourite musicians. "Bernstein even adds in detail that isn't in Strauss's score", he tells us. "A snap or Bartok pizzicato in the double basses right at the end of the market scene just before till rides off into the far distance. It means that the string is plucked with so much force that it rebounds against the fingerboard producing a distinctive crack. This kind of addition is of course typical of Bernstein who would often be far more interested in the spirit of the written score rather than the literal instructions on the page."
That neatly brings together two memorable events from my first term at University, back in 1974: the opening of the new arts centre, when honorary degrees were conferred on Peggy Ashcroft, Eurgene Ionescu, Michael Tippett and Leonard Bernstein, and one of the earliest concerts there given by the Amadeus String Quartet, which included a Bartok quartet from which I learnt about that pizzicato. But again, I digress.
Thanks to YouTube, I can direct you to exactly the right moment in Lennie's recording. But how does this relate to intellectual property law? Less well than it would have done a few years ago, I admit, but it's still relevant. Ever since Lord Diplcok's speech in Catnic v Hill & Smith [1981] FSR 60, [1982] RPC 183 (HL) we have been familiar with the idea of a purposive approach to interpreting patent claims - considering what the applicant had in mind, the spirit of the claims, rather than the precise words used. And although the way the courts approach patent claim interpretation now has developed from that starting point, the idea of a purposive approach remains important. Modern claim interpretation, I suppose, can be said to date from the moment Lord Diplock chose to seek out the purpose of the claims rather than fixating on the words - a departure which I do not believe is an unalloyed good thing, but who am I to criticise the noble Lord and his colleagues? Suffice to say (for the time being) that to my mind the purposive approach works far better in musical performances than in patent litigation.
Happily, the outcome of the review of the available recordings was that the Kempe version which I have owned for about 45 years came out well ahead of the rest. Although I do like the Bernstein ...
This time my inspiration came from Record Review on BBC Radio 3 a few weeks ago (on 14 December 2018, to be precise - if you go to the Radio 3 website you might still be able to find the programme, perhaps in the podcast version). The work being reviewed was Richard Strauss's Till Eulenspiegels lustige Streiche. It's a piece I came to love when I was still at school (the horn solo particularly appealed), and the three boxed set of LPs of Strauss's Orchestral Works by Kempe and the Dresden Staatskappelle were quite an early part of my record collection. But I digress, as usual.
About 17 minutes and 20 seconds into the podcast, the reviewer (the composer William Mival) is considering the 1959 recording by the New York Philharmonic under Leonard Bernstein - another of my favourite musicians. "Bernstein even adds in detail that isn't in Strauss's score", he tells us. "A snap or Bartok pizzicato in the double basses right at the end of the market scene just before till rides off into the far distance. It means that the string is plucked with so much force that it rebounds against the fingerboard producing a distinctive crack. This kind of addition is of course typical of Bernstein who would often be far more interested in the spirit of the written score rather than the literal instructions on the page."
That neatly brings together two memorable events from my first term at University, back in 1974: the opening of the new arts centre, when honorary degrees were conferred on Peggy Ashcroft, Eurgene Ionescu, Michael Tippett and Leonard Bernstein, and one of the earliest concerts there given by the Amadeus String Quartet, which included a Bartok quartet from which I learnt about that pizzicato. But again, I digress.
Thanks to YouTube, I can direct you to exactly the right moment in Lennie's recording. But how does this relate to intellectual property law? Less well than it would have done a few years ago, I admit, but it's still relevant. Ever since Lord Diplcok's speech in Catnic v Hill & Smith [1981] FSR 60, [1982] RPC 183 (HL) we have been familiar with the idea of a purposive approach to interpreting patent claims - considering what the applicant had in mind, the spirit of the claims, rather than the precise words used. And although the way the courts approach patent claim interpretation now has developed from that starting point, the idea of a purposive approach remains important. Modern claim interpretation, I suppose, can be said to date from the moment Lord Diplock chose to seek out the purpose of the claims rather than fixating on the words - a departure which I do not believe is an unalloyed good thing, but who am I to criticise the noble Lord and his colleagues? Suffice to say (for the time being) that to my mind the purposive approach works far better in musical performances than in patent litigation.
Happily, the outcome of the review of the available recordings was that the Kempe version which I have owned for about 45 years came out well ahead of the rest. Although I do like the Bernstein ...
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