Copyright Gone Wrong

At the beginning of this year, the head of the European Commission’s Internal Market and Services Directorate General Charlie McCreevy announced his plan to extend copyright terms for performers and phonogram producers from 50 years today to 95 years (1). The Commission advances the argument that many works from ageing musicians dating back to the 1950’s are about to fall into the public domain. As the Commission proposal explains:

Performers usually transfer their most economically significant exclusive copyrights to record companies via contract. In most cases, individual performers have little bargaining power. When signing a contract with a phonogram producer, performers are generally willing to accept the contract they are offered because the reputation and exposure gained by signing with a record label gives them the possibility of reaching a broad audience.

Many European performers (musicians or singers) start their career in their early 20’s. That means that when the current 50 year protection ends, they will be in their 70’s and likely to live well into their 80’s and 90’s (average life expectancy in the EU is 75 years for men and 81 years for women). As a result, performers face an income gap at the end of their lifetimes, as they lose royalty payments from record companies as well as remuneration due for the broadcasting or public performance of their sound recordings. (…)”

To solve this problem,the proposal aims to improve the social situation of performers, and in particular sessions musicians, taking into account that performers are increasingly outliving the existing 50 year period of protection for their performances.”

But this argument is not credible. According to the Open Rights Group:

For the vast majority of performers the projected extra sales income resulting from term extension is likely to be meagre: from as little as 50¢ each year in the first ten years, to as “much” as €26.79 each year. That’s because most of the gains (89.5%) will go to the top 20% of recording artists.”

Another economic study by Ph.D Professor P. Bernt Hugenholtz, head of the Institute for Information Law at the University of Amsterdam, was commissioned by the Directorate General. Apparently, it also provided evidence against the plan. As a matter of fact, Europe’s greatest IP scholars oppose the plan (see their op-ed in the Times Online). But Hugenholtz’s study was purely and simply ignored by the Commission, which claims in the proposal that “there was no need for external expertise”…  When he realized that his findings were not even mentioned in the explanatory memorandum to the proposal, Hugenholtz wrote a letter to Commission President José Manuel Barroso:

By wilfully ignoring scientific analysis and evidence that was made available to the Commission upon its own initiative, the Commission’s recent Intellectual Property package does not live up to this ambition. Indeed, the Commission’s obscuration of the IViR studies and its failure to confront the critical arguments made therein seem to reveal an intention to mislead the Council and the Parliament, as well as the citizens of the European Union.

In doing so the Commission reinforces the suspicion, already widely held by the public at large, that its policies are less the product of a rational decision-making process than of lobbying by stakeholders.”

Yes indeed. In truth, the proposal is not about performing artists. Instead, the term extension aims at extending record labels’monopolies by securing their control over the few records that are still commercially viable 50 years after their original publication. It is not mentioned in the Commission’s press release but you will find it if you read far enough into the explanatory memorandum. This is an argument that makes much more sense, although it is also much more controversial. For the first time in history, a wide collection of hugely significant cultural works – music recordings released between 1950 and 1970 – was about to enter the public domain, allowing anybody to freely access and build upon these works, without asking for permission to copyright holders. If the proposal is adopted, free uses will have to wait for another 45 years.

Advocates of copyright extension often argue that the first international agreement on copyright – the Berne Convention (1886)- was developed at the instigation of Victor Hugo. I love Hugo. He was a truly public-spirited, progressive lawmaker and an artistic genius. He wanted creators to be protected in order to set up incentives for them to develop and spread their art. But copyright law has drifted away from its original objective and has become incredibely tortuous. Now, even best established copyright experts, such as William Patry (Google’s Senior Copyright consel, among many other things), grieve over what copyright has turned into. This wreckage is one of the reason that led Patry to end his blog. As he explains:

I regard myself as a centrist. I believe very much that in proper doses copyright is essential for certain classes of works, especially commercial movies, commercial sound recordings, and commercial books, the core copyright industries. I accept that the level of proper doses will vary from person to person and that my recommended dose may be lower (or higher) than others. But in my view, and that of my cherished brother Sir Hugh Laddie, we are well past the healthy dose stage and into the serious illness stage. Much like the U.S. economy, things are getting worse, not better.

Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately (see the list of these international agreements)

Today, by no means does term extension foster creation: we are talking recordings produced 50 years ago! And given the current context, I find it dubious that big music groups will invest the extra revenue generated by this term extension to stimulate artistic production. If the Commission wants to solve the music industry crisis, this is not the way to go.

I am a stong believer in the European Union and I approve most of the Commission’s plans. I think we Europeans don’t realize what a good work it does. Nevertheless, Victor Hugo would be in fury if he saw the kind of legislation the Internal Market Directorate General is trying to pass. And I whish he was here to remind everyone with his fantastic eloquence what the public interest requires in such a case.

You can sign the petition against the proposed copyright term extension.

(All emphasis added)

(1) Note on copyrights: what is at stake in this proposal are neighbouring rights. Neighboring rights differ from the rights of the author, who is granted a 70 years long protection. The producer usually buys the author’s exploitation rights (he or she cannot oppose publication nor reproduction).

Eiffel Tower picture on Flickr by oOcekoO under Creative Commons License.

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