For the half-year to 31 December 2015, the IPKat's regular team is supplemented by contributions from guest bloggers Jani Ihalainen, Nikos Prentoulis and Mark Schweizer.

Birgit Clark is on Sabbatical till the end of the year

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Wednesday, 7 October 2015

Wednesday whimsies

This case seems to be
getting out of hand ...
To recap, the Court of Justice of the European Union (CJEU) gave its ruling on Wednesday 16 September in the '3D chocolate finger' trade mark case,  Case C-215/14 Nestlé v Cadbury [noted by Eleonora here]. On that very day, IPKat blogmeister Jeremy happened to alight upon the MARQUES Conference in Vienna, where some 820 trade mark experts -- mainly from Europe -- assembled. When he spoke to them, he received several different explanations as to what the CJEU's ruling actually meant.  While recent guest posts from Thomas Farkas (here) and Roland Mallinson (here) have suggested that the ruling was effectively a win for Nestlé -- subject to whatever the referring court might now do with the CJEU's ruling -- the popular press and many other practitioners have taken a different view.   Given the uncertainties as to what the CJEU's ruling actually meant, Merpel decided to ask readers of this weblog what they thought Mr Justice Arnold should do, now that he has either an answer or no answer to his questions. The results of this weblog's sidebar poll look like this:
What should the judge do? 
Accept the ruling gracefully and apply it to the letter, if that should be possible 46 (22%) 
Interpret the ruling in the light of his own knowledge of the law 58 (28%) 
Make a second reference to the CJEU to seek clarification of what it meant 52 (25%) 
Find a means of getting another judge to hear the next bit of this litigation and save himself a headache 46 (22%)
Never before has an IPKat sidebar poll attracted such a close call in terms of readers' responses.  This Kat thinks there is a case for saying that the good judge should fire the case back to Luxembourg and ask for some unequivocal clarification, though Merpel is inclined to think he should clarify the decision himself, leaving it for other judges to refer their cases to the CJEU if they disagree with him.

Here's a not particularly rigorous survey (naturally, since it's not one of ours, adds Merpel), prompted by Merpel's recent post to the effect that French applicants for European patents might not get their applications dealt with as swiftly as those of other nationalities. According to one of our more numerate readers, there have been 1,204 EP A documents published with French priority since 1 August 2015 and 194 EP A documents published with Spanish priority in the same period. Of the French documents, 118 (or 9,8% if you prefer) were published as A2s while for the Spanish only 9 (a paltry 4.6%) were published as A2s.  It is acknowledged that there may well be effects from backlogs in specific subject-matters associated with these delays. Or might this be a reprisal against the Spanish for having not only invented the concept of mañana mañana

Not all prosthetics
are patented, it seems
Around the weblogs. Here's a powerful piece of prose from Mark Anderson with the pull-no-punches title of "Amateurism doesn't work for IP", which it doesn't [adds Merpel: even professionalism doesn't always work either ...].   The IP Finance blog features a guest post from Felix Rozanski on the continuing problem of how to attract private sector investment in R&D and innovation in Latin America [Merpel's suggestion: make it more profitable to invest in IP than in infringement, which never seems to suffer from a shortage of private sector investment].  "Do not destroy the foundations of your argument" is the stern warning of Michael Thesen, noting EPO decision T2201/10 on PatLit.  The SPC Blog rejoices in the CJEU's clear and unambiguous ruling in Case C-471/14 Seattle Genetics that innovative pharma companies can get a few more days' protection for their extended monopolies. Finally, Aistemos takes a Cipher Snapshot at the distribution of patents and players across the vast, largely uncharted prosthetics sector.

From Katfriend and Polish blogger Bogusław Wieczorek comes a follow-up to an item this blog touched on over a year ago here. The story involved copyright in the unofficial so-called Polish "national anthem", Red Poppies in Monte Cassino, which turned out to be vested in the State of Bavaria.  Last month, representatives of Bavaria and Poland signed an agreement transferring the rights in this anthem to Poland. You can read the story in full in English, plus a scanned version of the agreement in question -- in Polish only -- here.

Tuesday, 6 October 2015

Gucci may be one nail away from a new legal battle

Kevin Bercimuelle-Chamot
Still dreaming of the outfits and accessories seen on the catwalks at recent Fashion Weeks around the world? Such dreams may come with legal headaches in some cases, eg for Italian fashion house Gucci.

Young and talented Katfriend Kevin Bercimuelle-Chamot (Lumière University Lyon 2) explains what is or may be going on.

Here’s what Kevin writes:

“The first half of 2015 has been a fairly animated one for Gucci. First, its (long-standing) cross-border trade mark battle against Guess? has taken a new shape. While the action that the Italian house had brought in France was dismissed on 30 January 2015, on 11 August 2015 Gucci won against Guess? before an Australian court. 

This legal saga, however, has not been the only element spicing life up at Gucci. 

Like other fashion houses [the latest piece of gossip appears to be that Phoebe Philo may be about to leave Céline] also Gucci has taken part in the fashion game of musical chairs. 

In January 2015 Alessandro Michele was appointed creative director following the abrupt departure of Frida Giannini [together with her now husband and former Gucci CEO Patrizio di Marco]. But this period of renewal might also be the beginning of a new legal battle.

Bijules nail rings
And Gucci might be the infringer this time.

Indeed, on 23 September last Gucci unveiled its Spring/Summer 2016 women’s collection. Amidst numerous accessories, golden nail rings could be spotted on the hands of models. It was the first time that the Italian house proposed this type of jewels.

The response of the fashion world has been immediate.

Among other reactions, one has to be particularly underlined. It is the one of American jeweller Bijules, also famous in the luxury market for its … nail rings. They are worn by celebrities like Beyoncé and Rihanna, just to mention a couple.

In a statement, Bijules designer Kim Jules said that Bijules may consider starting proceedings against Gucci for copyright infringement. She also pointed out how Gucci’s new creative director could have not been unaware of Bijules creations in his former capacity as Gucci head of accessories.

While waiting for future (contentious) developments, we may want to take a look at and compare the nail rings by Bijules and Gucci, respectively.  

Gucci nail rings
The “Bijules Serpensive Nail Ring” was registered with the US Copyright Office in 2007. As such it is protected by copyright under US law. The relevant rings – made of silver or gold – are composed as follows. The upper part of the ring reproduces the shape of a woman’s nail, which is attached to the finger through a ring. The lower part is shaped as a snake directed towards the hand. Overall these rings superpose the nail onto the distal phalanx of the wearer. Several models exist on the market, including one encrusted with crystals. A variation of the size of the nail can be also found.

The nail rings presented during Gucci’s show are all golden. They also reproduce the shape of a nail, that is juxtaposed to the nail of the wearer thanks to a ring at its basis. In several versions there is also the double G monogram of Gucci reproduced in small dimensions. There is also a version in which a golden bee is to be found on the basis of the ring. It is noteworthy to underline that the bee points towards the hand of the wearer. Also, other versions are made with spikes on the nail. The global size of the nail ring is variable, depending on the version.

It can be said that there might be a strong similarity between those nails rings, especially with regard to some versions. It is especially true after comparing detail by detail the rings of Bijules and Gucci.

But to hear the continuation of this story, we have to wait to see what Bijules eventually decides to do (also considering that it is unclear whether Gucci intends to market its own rings). If an action for copyright infringement is eventually brought, it will be interesting to see on what defence(s) (if any) the Italian fashion house will try to rely.”

EPO bids to save litigating employees from union's human rights infractions

Prior art? Wolf in sheep's clothing ...
Merpel has been taking another peep at the weird and wonderful topsy-turvy world of Eponia, in which the European Patent Office (EPO) has apparently seized the opportunity to offer some warm and tender paternalistic advice to those of its subjects (though it prefers the word "colleagues") who for some inconceivable reason might be troubled to bring legal cases against it.

"Out of its duty of care towards EPO employees", a duty which may indeed exist in theory but which many would say is sadly lacking in reality, the EPO urges its litigious colleagues to take great care to guard against the breach of its human rights by staff union SUEPO.  Both real and fictional Kats have memories that are admittedly fallible, but Merpel has this vague recollection that EPO's concern for human rights has been demonstrated more vividly by its defiance of them than by their protection. Was this organisation not called to account earlier this year by a Dutch court, in a judgment that the EPO ignored, trumpeting its immunity from national law? Yet it is the very same national law to which the EPO now, extraordinarily, turns.

Readers who are new to this weblog and who consider that the European Patent Office cares a bent penny for the human rights of its employees might like to look at the background here and here.  Readers who are familiar with this history can start reading last week's staff circular here:
Your rights

To all staff 
It has been recently brought to our attention that colleagues who turn to SUEPO for their pending legal cases against the Office are asked by SUEPO to sign a standard agreement in order to obtain financial support for the lawyer's fees. 
Out of its duty of care towards EPO employees, the Office requested an external legal advice to assess the conformity of this agreement to the applicable national law and has concluded that it does not fulfil the required standards of legality. 
Unions may be entitled to provide legal support to colleagues and to propose standard contracts to that effect. However, such contracts must comply with the applicable law and basic fundamental rights as recognised in all European countries and under general principles of law. 
More specifically, several clauses of this agreement seem to be against good faith and/or national law under which such contract is signed and are thus unlawful and void. 
For example, Article 13 of the agreement reads as follows:
‘Where an external lawyer has been retained, as defined above,
  • (a) The Applicant shall at all times entrust the whole procedure to the lawyer, either directly or through SUEPO's Legal Advisor.
  • (b) The Applicant shall at no time communicate directly with the Office on matters concerning the litigation without the prior and express approval of the external lawyer or the Legal Advisor.
  • (c) If the Applicant fails to meet the two requirements (a) and (b) above, financial aid by SUEPO may be revoked at any time and stage of the procedure.'
This standard clause prohibiting the staff member from communicating with the administration and therefore from taking any steps without requesting the express prior permission of SUEPO or SUEPO's lawyers restricts unlawfully the staff member's freedom of self-determination of his/her own case, infringes basic principles of the Law on general terms and conditions of employment, restricts his/her freedom of communication and constitutes an infringement of basic rights of occupational freedom in a dubious way. 
In case such unlawful clauses are used to block the possibility of amicable settlement or to exercise pressure to file further unjustified or unwanted litigation, this could be considered detrimental to the general interests of justice as well as an infringement of basic human rights of the staff member.
As a result, staff may consider contesting such contracts as void. 
In view of the above, the Office recommends staff to check with independent external lawyers of their choice the specific agreements they are asked to sign before doing so. 
If staff members are already engaged under such contract, they are in the same way and to the same extent also invited to check the lawfulness of the invoicing (proportionality of invoice against services, applicable fees under national law) as cases of overcharged legal fees/ invoices came to the attention of the Office. 
The Office's services remain at the staff's disposal for confidential consultation in case colleagues have already signed such documents and are not certain about the exact legal and financial obligations they have assumed from them. In such a case please contact the Conflict Resolution Unit.
Željko Topić
Vice-President DG 4
   Raimund Lutz
   Vice-President DG 5

Merpel wonders how many employees who are litigating against the EPO, or are contemplating doing do, would wish to take up the offer of the EPO's confidential consultation services.

Bat-tastic - Batmobile Protected by Copyright in the US

Amongst the very old school and traditionalist judgments here in the UK, it is always refreshing to read ones that step outside of that dusty judicial demeanor, and often our friends across the pond in the US show us that even judges remember their youth with fondness. Seemingly, as was the case in the recent US Supreme Court judgment in Kimble v Marvel [Katposts here and here], this emerges through cases involving superheroes, and a recent Ninth Circuit decision involving Batman was no exception.

The case of DC Comics v Mark Towle 2:11-cv-03934-RSWL-OP (accessible here) dealt with the copyright protection of the Batmobile, ever-present in the Batman saga, and its infringement through the making of replicas of specific versions of the aforementioned Batmobile [of the full-size variety, not merely toys]. As exclaimed by judge Ikuta, delivering the court's judgment; Holy copyright law, Batman!

Quickly, to the Katmobile!
As many will be aware, the Batmobile has been a part of the Caped Crusader's arsenal since the 1940s, often being drawn as a modern, high-tech vehicle containing bat-like features. It has also been features in a myriad of Batman movies and television adaptations, often being depicted as very different to the ones in the comic books. The more relevant ones were the vehicles used in the 1960s Batman TV series and the 1989 movie Batman. For both productions all rights to the recreation of Batman and other intellectual properties related thereto were licensed to the relevant parties for the purposes of merchandising, including the Batmobile. The defendant, Mark Towle, created life-like replicas of the Batmobile features in the TV series and the movie as a part of his business Gotham Garage, selling them to car collectors with a keen interest in Batman. He also sold car modification kits enabling a purchaser to do so themselves. DC Comics then took Mr. Towle to court in 2011 for both copyright and trademark infringement, as he had sold the replicas with clear indication and intention for them to be associated with the Batman brand.

The first claim dealt with by judge Ikuta was whether the Batmobile would be afforded copyright protection under US law ["to the Batmobile!" she exclaimed].

Through an extensive discussion of precedent surrounding comic book characters and protection afforded to them, judge Ikuta laid down a three-part test in assessing whether a character (or in this case, vehicle) would be afforded copyright protection. First, the character must generally have physical as well as conceptual qualities [meaning it has to not simply be a literary idea, but manifest itself in a physical and/or conceptual manner, such as in images, movies etc.]; second, the character must be sufficiently delineated to be recognizable as the same character whenever it appears [this need not be in terms of appearance, but through their character, personality etc.]; and third, the character must be especially distinctive and contain some unique elements of expression [in other words, not be a generic character with generic elements in their representation].

Some Kats have a secret alter-ego...
In applying the test judge Ikuta quickly saw that, as the Batmobile has appeared in many renditions in a variety of forms, it has conceptual and physical qualities. The vehicle has also maintained a sufficient amount of distinct features over the years, even with minor (or more major) difference in some iterations, along with its specific characteristics and features in equipment and technology, making it sufficiently delineated to be recognizable as the same vehicle. Finally, judge Ikuta saw that the vehicle was especially distinctive, containing unique elements of expression through its status as a key part of Batman's crime-fighting repertoire, along with its very distinctive name. The Batmobile therefore was deemed to be protectable under copyright.

As a final step the Court looked at whether Mr. Towle's replicas had in fact infringed on DC Comics' rights in the Batmobile. Both parties had no contentions over whether the cars were actual replicas of the two versions of the Batmobile. Mr. Towle argued that, as the Batmobiles features in the 1989 movie and the 1960s TV show were derivative works, he did not infringe on DC's rights in the underlying work. Judge Ikuta quickly dismissed this, stating that "...if the material copied was derived from a copyrighted underlying work, this will constitute an infringement of such work regardless of whether the defendant copied directly from the underlying work, or indirectly via the derivative work". No rights were transferred as a part of the licence agreements for the two derivative works, and therefore Mr. Towle had infringed DC's copyright through making his replica vehicles. This was deemed to be the case even though the two versions of the Batmobile differed from their depiction in the comic books.

The case was an interesting one, at least to this Kat. The Batmobile has been depicted in a variety of forms over the years, and when comparing the Batmobile in the recent Dark Knight movie, and, for example, the 1960s TV show version, it is hard to say they are cut from the same cloth. Even so, based on a US law argument the decision seems right [although this Kat invites anyone who might disagree to let him know why], and as judge Ikuta ended, quoting Batman: "[i]n our well-ordered society, protection of private property is essential".

Monday, 5 October 2015

Never Too Late: if you missed the IPKat last week

Were you away or just too busy to read the IPKat last week? Do not despair, because our dear friend and colleague Alberto Bellan is back as usual with his Never Too Late feature, now on its 66th edition.

So here's what happened last week:

"Punitive damages" is one of those topics that sharply divide the community of European lawyers. Mark takes a tour through the Court of Justice of the European Union's (CJEU) decisions on this point.

A few weeks ago this blog reported on the latest Opinion of the European Copyright Society (ECS), this time regarding a case currently pending before the Court of Justice of the European Union (CJEU): HP Belgium v Reprobel, C-572/13. IFRRO, the International Federation of Reproduction Rights Organisation, does not fully agree with ECS, Eleonora reports.

On 26 November, the Journal of Intellectual Property Law & Practice celebrates its 10th anniversary with a full day's conferencing, discussion, dispute and debate. Along with stellar speakers, there's another reason why IPKat aficionados should join the event, writes Jeremy.

WIPO, along with researchers at Cornell and INSEAD, recently published the Global Innovation Index. The index ranks countries by their innovativeness and usually grabs a few headlines, particularly in countries who've fared well. Nicola tells all.

Have you ever come across a copyright law that provides that the State automatically acquires ownership of copyright in a certain work upon death of the relevant owner? This appears to be what South African (SA) Government may have in mind (unless all this is just a result of bad inaccurate law drafting) with one of its proposed amendments to this country’s copyright law. IP enthusiast and Katfriend Nedim Malovic (Stockholm University) explains.

Once every three months or thereabouts, the IPKat and Merpel post an update of the goings-on both on this weblog and on other IP-flavoured blogs to which members of the IPKat's blog team contribute. Here's the last edition penned by Jeremy.  

Every year it is the pleasure of the IPKat to invite his friends, colleagues, informants and competitors in the intellectual property media sector to join him for a get-together at which matters of mutual interest are discussed in a friendly and informal atmosphere. This year is no exception, says Jeremy.

Here’s an interesting thought experiment about how patent offices should operate. Two patent applications are pending at the European Patent Office (EPO). Imagine that one was filed several years ago by Microsoft, and the other was filed at the same time by (say) an Italian SME which files “only” 10 patent applications per annum. Nothing much has happened in either case now for several years, but both files are allocated to the same examiner. Which case should the examiner pick up first – the one filed by the “customer” with 750 filings per year, or the one filed by the SME? Here's the first part of this tale, kindly recounted by Merpel.

… and here's the second one.

$100 billion loss per year (emphasis in original). At least. That is the sum of global IP losses due to 3D printing predicted by IT research and advisory company Gartner for the near future”, some say. Really, wonders Neil?

From guest contributor Emma Perot comes this appraisal of a dispute between a giant publisher of valuable and useful scholarly material on the one hand, and those who seek access to that same information on the other. 

Eleonora reports on a case (Tilda Riceland Private v OHMI - Siam Grains (BASMALI), T-136/14) that the General Court (GC) decided on 30 September last, and appears to have some relevant implications particularly as far as that peculiar creature of UK common law known as extended passing off is concerned.

Hyperlinking-loving ALAI (the Association Littéraire et Artistique Internationale) has recently released a new Report and Opinion on a Berne-compatible reconciliation of hyperlinking and the communication to the public right on the internet. Eleonora reports on that and hosts an analysis of a recent Greek decision by Katfriend Yannos Paramythiotis (Paramythiotis and Partners)

Katfriend Mira T. Sundara Rajan -- herself a concert pianist -- has something special to say about one of the most gifted musicians of our generation and an interesting issue in moral rights. 



Never too late 65 [week ending on Sunday 27 September] – Scotch whisky battle in far-off China | CJEU loves KitKat | EPO in Case T 0327/13 | UPC opening in London | Happy birthday copyright case | Goldbear saga | Tatoos and copyright | IP in 2015 – Where we are vs. Where I thought we’d be | PETA litigates over macaque selfie | JIPLIP event

Never too late 64 [week ending on Sunday 20 September] – Adwords in Canada | EU Draft consultation on ISPs | "The UPC: A Panel Debate" | Prince and Mean Music Companies v That lovely baby dancing Prince  Lenz v Universal Music | CJEU in KitKat | Paul Burrell v Max Clifford [2015] EWHC 2001 (Ch) | Economics of Collecting Societies | Who is an 'intermediary' for the sake of Article 11 of the Enforcement Directive? | IP: When innovation is the answer to a spiritual funk

Never Too Late 63 [week ending on Sunday 13 September] - Fair compensation in reprography and private copying: the ECS’ version | Substitute sellers | Teva UK Ltd & Another v Leo Pharma | Evidence-based IP policy | KitKat case | UK IPO’s priorities | UK IPO’s website vs complete copyright legislation | Patent Attorney Qualifications | Mylan and Actavis v Warner-Lambert | Copyright and censorship | Suicide at the EPO | Private copy levies in Austria | Court fees in the UK.

Never too late 62 [week ending on Sunday 6 September] - Copyright and industrial design in Japan | Greek political slogans and trade marks | Moral rights in legal works | Economist v patents | CJEU in Iron & Smith Kft v Unilever NV | Copyright over criminals' works | IPEC in Minder Music & Another v Sharples | Apple’s European slide-to-unlock patent declared invalid in Germany.

Eponia rumours: House Ban, Vienna and under-strength Boards

After a quiet summer, Merpel gets the feeling that the impending meeting of the EPO Administrative Council* (AC) on 14-15 October is causing a flurry of activity, which is giving rise to several rumours in relation to the Boards of Appeal.

House Ban update 

Regular readers of this blog may recall that, 10 months ago, a member of the Boards of Appeal at the European Patent Office (EPO) was escorted from the premises of the Office on the instructions of the President. It was alleged that this Member was guilty of defamation, and in the rush for pitchforks Mr Battistelli apparently forgot that he had no power to discipline a Board Member.

Following interventions from the Enlarged Board, external national judges and many other quarters, the Administrative Council took the matter in hand, formally suspended the Board Member until 31 March 2015, and promised a speedy and thorough investigation of the matter. 'Speedy' means different things in Eponia than where Merpel lives, but six months after that March date it appears that there has been progress of a sort.

Among the items listed on the Agenda for the forthcoming AC  meeting is this disciplinary case. The AC will review the allegations, then review the defence and response submitted by the person involved, and will then apparently review the decision of the Enlarged Board in this matter before coming to a decision.

This could mean what is says, i.e. that the AC will come to a disciplinary decision this month. However, watch this space, as Merpel has reason to suspect that the story will not come to a neat close, or at least not this month.

Oh Vienna!

If Vienna's too close,
what about Columbia ...?
The EPO management has been seeking to reform the Boards of Appeal, and apparently a necessary part of this project is to get them out of Munich. The fact that the more senior members have family ties there, children in school and college, and may ultimately be forced to resign if there is a long-distance move, is neither here nor there (or is that the whole point?).  Regardless, it was long understood that Mr Battistelli favoured sending the Boards to Berlin, but the little birdies hiding from Merpel in the trees along Erhardtstrasse are chirping that the new plan is to send the Boards to Vienna. Nice city to be sure, but it's a long commute after dropping the kids to school in Munich each morning. Merpel will keep you posted.

Under-strength Boards

Conspicuously absent from the AC's agenda (since we are talking about the Boards of Appeal) is any signal that the Council is ready to make the long-overdue appointments required to bring the Boards up to full strength. The AC can only make such appointments on the proposal of the President, but Mr Battistelli has been uncharacteristically remiss** in this regard. It has been suggested that Board of Appeal members who are depending on reappointment might feel that they lack their former zeal if tempted to make a decision against the interests of the administration.

Unless the necessary appointments are made, Merpel understands that no fewer than seven chairperson positions will be vacant at the beginning of 2016, along with seven legal positions and thirteen technical positions.


* Just making sure that you see the footnotes before you close the email or the page. As you were.

** Merpel's kidding, it's not uncharacteristic at all. For example, staff representative posts, which bizarrely depend on Mr Battistelli's imprimatur, have remained unfilled for months at a time even though substitutes had already been elected prior to a position opening. Those substitutes were standing by to attend crucial meetings, but were turned away from the door as not being properly accredited (by Mr. Battistelli, that is). Helpfully, Vice-President Topic who chaired the meetings, steamrolled any objections and carried on regardless, leaving staff in a minority when a vote on downgrading their health package was put to a committee designed to be balanced but engineered to give management an advantage. The absence of a staff rep from the crucial vote allowed Mr Battistelli to present his health reform to the AC as having been "properly approved" when in fact the vote lacked credibility. Fortunately the AC proved to be a vigilant watchdog, scrupulously looking out for the interests of the staff under its care ***.

*** Merpel's kidding again. Despite having been informed of the flawed vote, the AC nodded it through, like always. In fairness, at recent meetings the level of dissent has increased and some delegations have shown some backbone. Time will tell if this is a trend that will grow sufficiently to restore the AC's independence and credibility as a governing body.

Sunday, 4 October 2015

Glenn Gould and the case for moral rights in sound recordings

4 October is a calendar date that has a resonance with many pianists.  In this guest post, Katfriend Mira T. Sundara Rajan -- herself a concert pianist -- has something special to say about one of the most gifted musicians of our generation and an interesting issue in moral rights. This is what she writes:

Today is the 33rd anniversary of the death of Glenn Gould – Canadian pianist and musician extraordinaire, who died in 1982, at the premature age of fifty. One month before he died, Gould completed re-recording the work that had first made him famous, the Goldberg Variations of J.S. Bach. But to say that he revisited an old work in that final recording seems curiously imprecise. The second recording was so utterly novel, so completely reimagined from his first, spectacular, and universally admired, 1955 version of the work that, in its own way, it qualified as a new undertaking. Amazingly, the second Goldberg managed to fascinate and captivate just as fully as the original recording did, but in a completely different way. It holds the work together with what Gould called “a sense of pulse,” and further bolsters Gould’s already stellar reputation as an artist of almost cosmic significance.

In the three decades that intervened between the two recordings, Gould developed what may have been the most remarkable career in the history of Western classical music. He hated live performance. At the age of 32, he decided to live life as he wanted to, and undertook the dramatic and unprecedented step of retiring permanently from the stage. He was warned against doing so by his manager, the legendary Walter Homburger, who told him that audiences were fickle and, once gone, he might never be able to come back. But Gould had a plan – to maintain his presence in the world of classical music through recordings – and proceeded to carry out this feat with extraordinary efficiency and effectiveness.

The secret of Gould’s success was arguably very simple: it lay in the quality of his recordings.  Gould approached recording as no artist had previously done. For him, the goal of recording was not to reproduce his own live performance; rather, it was to create a new, unique work, one that could only have been born in the studio.  Live performances were one-off affairs and, if something went wrong, if anything were different from what the artist truly desired, nothing could be done. The failure was complete – a fatality. He called it the “non-take-twoness” of performance. In contrast, the recording studio represented control – supreme, undeniable, artistic control – the ability not so much to excise and avert mistakes (not an issue for Gould) but to re-think and re-conceptualize every instant of a musical interpretation, to exercise creative control over nearly every dimension of the final musical form.

He learned about the recording process, was fascinated by it, and attempted to use the technologies of recording to serve his vision of a more perfect work of art. His long-time producer, Andrew Kazdin, wrote a fascinating, if at times bitter, account of the 15 years during which he worked with Gould as his regular producer. As Kazdin tells it, Gould would play many interpretations of his pieces for the microphone before he chose his definitive versions, or constructed them out of pieces of each of his own, perfect takes. Any artist who has worked in the studio can attest to the extraordinary stamina, skill, and concentration that Gould’s recording process must have demanded.

Gould loved technology in all its dimensions, admiring Bach as played on the Moog synthesizer, and arguing that the “new listener” of the future would enjoy music by playing it on a sound system that would enable him, or her, to exercise new kinds of manipulation and control. Technology would allow the listener of the future to intervene creatively in the sound, and to take an active part in generating his or her own artistic experience. Ancient Sanskrit thinkers already knew that the human brain, itself, accomplishes this very goal through its experience – individual, shared and transcendent –  of musical consciousness. They called the shared artistic experience rasa, and he or she who enjoys art as creatively as the maker makes it, the rasika. Gould’s vision of technology seems almost spiritualized. By a paradox, the man who sought to efface his presence from the concert stage by physically removing himself from it, managed to achieve an almost limitless expansion of personality through his recordings.

Recording technology is a fast-growing field, and the changes, even since Gould’s latter days, are tremendous. Yet there is still no other artist like Gould – no classical musician, in particular, who has embraced the possibilities of technology for an “alternative” career to the traditional path of exhausting competitions, Carnegie Hall debuts, and concert tours... The goal of classical music production generally remains the re-creation of an idealized version of the concert-hall experience for the listener at home.

Interest in Gould has grown phenomenally since his death. Since the 1980s, there has been an outpouring of work on Gould – but the true explosion of interest in him has taken flight in the internet age. Much of this interest surrounds Gould “the man,” rather than, primarily, the musician. Gould was known for his eccentricities – his solitary lifestyle, late-night phone calls, humorous alter egos, obsessive privacy, terror of illness, and compulsive hand-soaking in hot water, to name only a few of his special “characteristics.” In recent years, Gould’s psychological health has been probed in books, and the secrets of his love life revealed – apparently with the understandable desire to settle public speculation – by his long-time companion.

But his music, of course, cannot fail to command attention. In the post-Gould era, recordings of Gould’s playing have proliferated. His original label, CBS Masterworks, was acquired by Sony in 1987, and Sony Classical has remastered and re-released the original recordings. New CDs have also been issued: works that Gould performed but never made into definitive recordings are now available. Throughout most of his life, Gould was not only charismatic, but handsome and photogenic, and his recordings are frequently issued with covers, or even booklets, featuring striking photos. New video footage of his performances is available. Indeed, there is now such a wealth of recorded matter featuring Glenn Gould on the market that even seasoned aficionados of Gould’s playing would be hard-pressed to identify everything.

To what extent do these recordings represent the versions originally made, with Gould working alongside his producer? What is the effect of re-mastering, and has it faithfully preserved the defining qualities of the original sound? What would Gould think of the variety of other matter, including live recordings, that is now available? ...What would he think of something like the Zenph company’s attempts to re-create the original sound of his playing through sophisticated software that takes into account his every movement and gesture, and “re-performs” it, eerily, on a piano that plays itself?

We can look at it both ways. It’s new technology – Gould would have loved it. And he surely would have loved, and been awed by, the amazing growth of the world’s interest in him and, above all, in his music – to be reaching listeners around the globe through new technology.

But, at the same time, there is no question that Gould loved his recordings, and there can be no doubt about the dedication that he brought to the process of creating them. He exercised control, as completely and comprehensively as he could, to make them works of art. Now, they are awash in a virtual universe of matter and material, afloat on an ocean of works both by and about him. What would he think of an environment where his original creations are becoming increasingly difficult to identify,  and where his recordings are interspersed with works not “made” by him, in this broader sense – although his playing appears in them? And what about those who worked with Gould, including Mr. Kazdin; how would they see these developments?

On September 11, 2015, Sony Classical officially released a remastered set of Gould’s “complete recordings.” The set of 81 CDs is accompanied by a 416 page book. Sony’s website for the project is available at “,” and it notes:
 “The first generation of Goulds’ [sic] recordings were [sic] available on magnetic tape in the Columbia archives, permitting us to ensure maximum sonic authenticity by applying the high-resolution Direct Stream Digital procedure (DSD). Moreover, in one of the most lavish remastering projects of all time, the listening conditions in the studio were so elaborate that the recordings could be heard there with less distortion and greater clarity than Gould himself was accustomed to when listening to his takes.”
These amazing developments raise fascinating questions about the art and artistry of musicians in the digital age. While there are few clear answers, there is an interesting legal dimension that could potentially help to clarify readers’ thoughts. In recent times, the law has come to recognize a moral right of integrity for musical performers. Performers’ moral rights made their first appearance in the WIPO Performances and Phonograms Treaty of 2002 (Article 5; provision first drafted in 1996). However, the right applies to performances; it does not recognize the unique features of a recorded performance, particularly in the sense in which Gould, and his producers, might have understood the term. At the same time, there is no moral right in sound recordings per se. Where a legacy as important as Gould’s is concerned, it is interesting to wonder whether there might be a new and valuable role for the moral right of integrity in the new world of recorded sound – a concept of integrity in recorded music that is totally novel, and adapted to the needs of the technological age (here and here).

If the time ever comes when it is difficult to find Gould’s “original” recordings, there is one place where we know that we can look: the spacecraft Voyager, where at least one of them, his Prelude and Fugue in C Major from Bach’s “Well-Tempered Clavier” (Book II), remains, for the time being, safely stowed. It is hurtling away from us through interstellar space, at unimaginable speed and already at an unimaginable distance, but it is there – as close to forever as anywhere can be.
Glenn Gould's Goldberg Variations recordings here.

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