Good news for record companies, bad luck for dancers

The IPKat reported last week on renewed moves to extend the term of copyright in performances and sound recordings in the EU. Well, they didn't hang around once they had decided to consider this topic.

At yesterday's Council meeting, the directive was adopted.  Interested readers can find the full PDF text here, but if you prefer to receive your copyright law in handy, bite-sized chunks, the main provisions are:

• The term of copyright for fixations of performances in sound recordings and for sound recordings themselves is extended from 50 years to 70 years (counted from the date of publication or communication to the public). 

Performers get to cancel copyright
in works which nobody cares enough
about to commercialise

• "Use it or lose it": If a record producer is not making sufficient quantities of the record available to the public after 50 years, the performers can terminate their assignment to the record producer, which also has the effect of terminating the record producer's copyright in the recording.

• Record companies will have to pay 20% of the revenues earned during the extended period into a fund. The money from this fund will be allocated to session musicians who received once-off, non-recurring payments for their performances.

• Where a performer is entitled to recurring payments which had been subject to advance payment or other contractually agreed deductions, then during the extended term those deductions will no longer apply.

The underlying rationale for extending the term of copyright is found in recital 5, which says:

Sir Cliff, before he started worrying
about an income gap.
© Allan Warren

Performers generally start their careers young and the current term of protection of 50 years applicable to fixations of performances often does not protect their performances for their entire lifetime. Therefore, some performers face an income gap at the end of their lifetime. In addition, performers are often unable to rely on their rights to prevent or restrict an objectionable use of their performances that may occur during their lifetime.

Is the term extension truly for the benefit of the performers? The major beneficiaries must be the companies who keep 80 cents of each Euro earned for the next twenty years. The 20 cents that they are required to set aside is the price they had to pay to have their copyright extended, allowing the directive to be presented as a favourable measure. 

Some performers are
more equal than others

This claimed rationale - concern for performers in later life - is further undermined when one examines the uneven treatment applied to different types of performers (and different types of recording).  The term of protection was left at 50 years for any performer's rights which are not fixed in a phonogram.  The term of protection was also left unchanged at 50 years for producers of the first fixation of a film, and for broadcasts.

If the intention is to ensure that performers do not suffer an income gap in later life, why stop with those whose recordings form part of works controlled by music companies?  Presumably, our politicians felt that dancers can leap over the income gap, actors can pretend it does not exist, and magicians can simply pull a few quid from a hat whenever they need to.

Copyright term for songs as literary and musical works
The Directive also addresses the calculation of term of copyright for combined musical and literary works when in the form of "musical compositions with words" (that's songs to you and me). The Berne Convention - and by extension the law of all EU states - requires that for works of joint authorship, the term of protection is counted from the death of the last surviving author, but different countries apply different criteria as to what constitutes "joint authorship".  Currently, in some countries, if the contributions are distinct from one another, there is no joint authorship, while in others, there is always deemed to be joint authorship for a musical composition and accompanying lyrics.

The new Directive requires EU member states to calculate the 70 year copyright term for both the music and lyrics from the date of the death of the last surviving member of the songwriting team (i.e. the last surviving author of the lyrics or composer of the musical composition), provided that both contributions were specifically created for the work in question. There should be no surprise here, as the pattern of all copyright harmonisation in the EU has been to force countries with more liberal regimes and shorter terms to move into line with the countries having longer terms and stronger regimes.

Copyright term extension: back on the agenda

Lurking quietly among the European Union's various IP legislation goals for the last two years is a proposal to extend the term of copyright in sound recordings and performances from 50 to 70 years, starting from the date of fixation or publication.

The IPKat reported on this issue when it was being debated in the European Parliament back in 2008 and 2009, a debate which resulted in Members of the European Parliament (MEPs) voting in favour of an amended proposal which scaled back the term extension from 95 years to 70 years, and included mechanisms to ensure that a percentage of the royalties arising during the extended term would go to session musicians, regardless of pre-existing contractual arrangements.

After the vote, silence ... until now


Then everything went relatively quiet.  Non-European readers might assume that, once the European Parliament voted in favour of a Directive, the law would be adopted, subject perhaps to some sort of Grand Vizier character applying a signature or quasi-monarchical seal to a suitably ornate document, but European lawmaking is rarely so straightforward (or colourful, alas).

The legislative triangle of the EU (by Ssolbergj)

Most legislation requires "co-decision" by both the Parliament and the Council (which is composed of the national governments), as explained in the useful little graphic on the left. When the copyright term extension proposal went to the Council, however, it lost all momentum and appeared to have been placed in cold storage, reportedly due to a blocking minority of countries.

Now, due to the reported thawing of Denmark's position, possibly due to global warming [Merpel says: or as a result of interested lobby groups and countries applying the heat?] the proposal has come out of the refrigerator.  According to the agenda for tomorrow's COREPER meeting, published yesterday, the proposal to amend Directive 2006/116/EC (that's the Term Directive to you and me) is up for deliberation as item 18, suggesting it will be back on the Agenda for the Council to decide before too long (thanks to Alexander von  Mühlendahl for additional clarification).

Incidentally, a group of 40 MEPs, led by Swedish Pirate Party representative Christian Engström, had tried to snatch the ball back from Council in recent months, relying on a procedural mechanism which allows a newly elected Parliament to reconsider items voted by the previously dissolved Parliament, but he reported yesterday in his blog that his attempt had been turned down, leaving the way open for Council to adopt the proposal.


The UK position: Do Ministers listen to Professors?

Various commentators, including Mr Engström, note with some disappointment that the UK appears committed to supporting the term extension, despite having commissioned the Hargreaves Review which advised exactly the opposite. Can this be true, the IPKat wonders?

The Hargreaves Report

Well, it's not precisely true to say that Hargreaves concluded that the UK should vote against term extension, if one reads the Report with a pedantic eye, but on the other hand, Mr Engström's summary is not all that far off the mark.

Professor Hargreaves noted that "IP policy has not always been developed in a way consistent with the economic evidence", and as an example of such legislative short-sightedness he cites exactly these proposals to extend the term of copyright in sound recordings Regarding such extensions he says:

Economic evidence is clear that the likely deadweight loss to the economy exceeds any additional incentivising effect which might result from the extension of copyright term beyond its present levels. This is doubly clear for retrospective extension to copyright term, given the impossibility of incentivising the creation of already existing works, or work from artists already dead.

Despite this, there are frequent proposals to increase term, such as the current proposal to extend protection for sound recordings in Europe from 50 to 70 or even 95 years. The UK Government assessment found it to be economically detrimental. An international study found term extension to have no impact on output.

However, the Hargreaves Report then catches itself in the act of giving advice on something outside its remit, shrugs its shoulders, and makes it pretty clear which way the advice would point if only someone had thought to ask:

Legitimate questions of culture, fairness and “just reward” for creators also arise, and have tended to dominate the debate on copyright issues. Indeed, they were explicitly cited by the previous Government as justification for extension of copyright term, despite the economic evidence. These questions are clearly significant, and it is not part of the Review’s task to determine how they should be resolved. We simply invite Government to consider that as copyright becomes increasingly economically important, it is vital that economic considerations are fully weighed in the balance. ... If the current imbalance in the debate on copyright is allowed to continue, the economic price will be high.

Culture Minister Ed Vaizey © Jon Jordan

So presumably the UK Government took these words to heart, and thought long and hard about the "likely deadweight loss to the economy"?  Culture Minister Ed Vaizey certainly appears to have rather cheerfully suppressed any second thoughts he might have had as a result of such soul-searching.  In a reassuringly concise account of his struggle to balance the various factors and the doubts which Professor Hargreaves' warnings undoubtedly caused him, in July he told the AGM of the British Phonographic Industry:

And while we are in the area of copyright, I would just like to add that the Government will continue to support moves in Europe to extend copyright in sound recordings.

So while Hargreaves (almost) said that extending term to 70 years was a bad idea, and certainly counselled against taking this matter lightly, the UK Government has nevertheless signalled that it will vote for term extension when it comes before the Council.

This Kat finds it disappointing that, despite all the talk of a brave new evidence-based method of making policy, there has been no appreciable change in the UK Government's approach to the wisdom of ever-increasing copyright terms.  This would seem to be a prime candidate for policy reversal or reconsideration, if Professor Hargreaves is to be believed.