Features

net.wars: Forty-five years

by Wendy M Grossman | posted on 06 February 2009


This week the EU's legal affairs committee, JURI, may vote – again – on term extension in sound recordings. If you want to oppose term extension, this is the key moment.

Wendy M Grossman

As of today, copyright is still listed on the agenda.

That's JURI. Opposing term extension was a lot simpler at the national level in the UK; the path from proposal to legislation is well-known, well trodden, and well-watched by the national media.

At the EU level, JURI is only one of four committees involved in proposing and amending term extension on behalf of the European Parliament – and then even after the Parliament votes it's the Commission which makes the final decision.

The whole thing drags on for something close to forever, which pretty much guarantees that only the most obsessed stay in touch through the whole process. If you had designed a system to ensure apathy except among lobbyists who like good food, you'd have done exactly this.

There are many reasons to oppose term extension, most of which we've covered before. Unfortunately, these seem invisible to some politicians. As William Patry blogs, the harm done by term extension is diffuse and hard to quantify while easily calculable benefits accrue to a small but wealthy and vocal set of players.

What's noticeable is how many independent economic reviews agree with what NGOs like the Electronic Frontier Foundation and the Open Rights Group have said all along.

According to a joint report from several European intellectual property law centers (PDF), the Commission itself estimates that 45 extra years of copyright protection will hand the European music industry between €44 million and €843 million – uncertain by a factor of 20!

The same report also notes that term extension will not net performers additional broadcast revenue; rather, the same pot will be spread among a larger pool of musicians, benefiting older musicians at the expense of young incomers. The report also notes that performers don't lose control over their music when the term of copyright ends; they lose it when they sign recording contracts (so true).

Other reports are even less favourable.

In 2005, for example, the Dutch Institute for Information Law concluded that copyright in sound recordings has more in common with design rights and patents than with other areas of copyright, and it would be more consistent to reduce the term rather than extend it.

More recently, an open letter from Bournemouth University's Centre for Intellectual Property Policy Management questioned exactly where those estimated revenues were going to come from, and pointed out the absurdity of the claim that extension would help performers.

And therein is the nub. Estimates are that the average session musician will benefit from term extension in the amount of €4 to €58 (there's that guess-the-number-within-a-factor-of-20 trick again).

JURI's draft opinion puts the number of affected musicians at 7,000 per large EU member state, less in the rest. Call it 7,000 in all 27 and give each musician €20; that's €3.78 million, hardly enough for a banker's bonus. We could easily hand that out in cash, if handouts to aging performers are the purpose of the exercise.

Benefiting performers is a lobbyists' red herring that cynically plays on our affection for our favourite music and musicians.

What term extension will do, as the Bournemouth letter points out, is benefit recording companies. Of that wackily wide range of estimated revenues in the last paragraph, 90 percent, or between €39 million and €758 million will go to record producers, even according to the EU's own impact assessment (PDF) based on a study carried out by PriceWaterhouseCooper.

If you really want to help musicians, the first and most important thing you should do is improve the industry's standard contracts and employment practices. We protect workers in other industries from exploitation; why should we make an exception for musicians?

No one is saying – not even Courtney Love - that musicians deserve charity. But we could

  • reform UK bankruptcy law so that companies acquiring defunct labels are required to shoulder ongoing royalty payment obligations as well as the exploitable assets of the back catalogue. We could
  • put limits on what kind of clauses a recording company is allowed to impose on first-time recording artists. We could
  • set minimums for what is owed to session musicians. And we could
  • require the return of rights to the performers in the event of a recording's going out of print.
  • Any or all of those things would make far more difference to the average musician's lifetime income than an extra 45 years of copyright.

    Current proposals seem to focus on this last idea as a "use it or lose it" clause that somehow makes the rest of term extension all right. Don Foster, the conservative MP who is shadow minister for the Department of Culture, Media, and Sport, for example, has argued for it repeatedly.

    But by itself it's not enough of a concession to balance the effect of term extension and the freezing of the public domain.

    If you want to try to stop term extension, this is a key moment. Lobby your MEP and the members of the relevant committees. Remind them of the evidence. And remind them that it's not just the record companies and the world's musicians who have an interest in copyright; it's the rest of us, too.


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    Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).