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      Thursday, July 17, 2008

 

Well the EU has not been slow about following up on Charlie McCreevy's promise to extend the term of copyright in sound recordings. From Europa:

"The Commission adopted a proposal to extend the term of protection for performers and sound recordings to 95 years. The aim of the proposal is to bring performers' protection more in line with that already given to authors - 70 years after their death. The extended term will enable performers to earn money for a longer period of time and in any event throughout their lifetime. The income from copyright remuneration is important for performers, as they often do not have other regular salaried income. The extended term will also benefit record producers who will generate additional revenue from the sale of records in shops and on the internet. This should allow producers to adapt to the rapidly changing business environment and help them maintain their investment levels in new talent.

The proposal also contains accompanying measures which aim specifically to help performers. The 'use it or lose it' clauses which will now have to be included in the contracts linking performers to their record companies will allow performers to get their rights back if the record producer does not market the sound recording during the extended period. In this way the performer will be able to either find another record producer willing to sell his music or do it himself, something that is possible easily via the internet. In case neither the performer nor the producer would wish to market the recording, the recording would no longer be protected. In this way, the term extension would avoid 'locking up' those recordings that are not commercially interesting. Finally, record companies will have to set up a fund into which they will have to pay 20% of their revenues earned during the extended period. The money from this fund will be destined to help session musicians."

The press release justifying the move is here and the actual proposal for an EU directive (amending Directive 2006/116/EC on copyright term) is here. Let's be clear here - there is absolutely no economic justification for the extension of copyright term in sound recordings. Anyone who can do a simple discounted cash flow calculation can demonstrate that. The proposal says:

"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.

The large scale production of phonograms is essentially a phenomenon that commenced in the
1950s. If nothing is done, over the next 10 years an increasing amount of performances
recorded and released between 1957 and 1967 will lose protection. Once their performance
fixed in a phonogram is no longer protected, around 7000 performers in any of the big
Member States and a correspondingly smaller number in the smaller Member States will lose
all of their income that derives from contractual royalties and statutory remuneration claims
from broadcasting and public communication of their performances in bars and discotheques.
This affects featured performers (those who receive contractual royalties) but especially the
thousands of anonymous session musicians (those who do not receive royalties and rely solely
on statutory remuneration claims) who contributed to phonograms in the late fifties and sixties
and have assigned their exclusive rights to the phonogram producer against a flat fee payment
('buy out'). Their 'single equitable remuneration' payments for broadcasting and
communication to the public, which are never assigned to the phonogram producer, would
cease."

If the aim really is to "improve the social situation of performers, and in particular sessions musicians" how are these sessions musicians going to be helped by an extension of copyright term when they "do not receive royalties" and "have assigned their exclusive rights to the phonogram producer against a flat fee payment ('buy out')." Yes they may have access to extended "'single equitable remuneration' payments for broadcasting and communication to the public" but wouldn't it be much better to set up a pension scheme for such musicians? A plumber who fixed a tap in 1958 does not get a perennial income on that job. And certainly does not get to extend that income for another 45 years just because a deal he might have signed up to in the 1950s is running out. The main beneficiaries of extension of copyright term are the commercial organisations and still popular artists who hold copyrights in commercially valuable recordings from the 1950s and 60s, not the sessions musicians that the proposal claims to be aimed at.

By all means support sessions musicians with proper pension funds but do not do so by handing large quantities of money to small numbers of commercial or wealthy entities in the hope that some of the pennies may find their way to the people who really need them. The Times headlines the proposal today: Sir Cliff Richard pins hopes on law that will keep cash rolling in until he’s 113

Update: And so says the BBC: Veteran rockers set for windfall and Ars Technica and many others. Nate Anderson at Ars Technica sums up the smoke and mirrors PR nicely:

"The whole bizarre debate never seems to haul itself around to addressing the fact that everyone who participated in the current system did so knowing about the 50-year term; no one is in danger of "losing" anything they were once promised, and they've had half a century to plan for the future."

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