Tuesday, January 20, 2009

EU Copyright term again, some exchanges with MEPs

I've written to my MEPs asking them to oppose the directive shortly to come before the EU parliament on extending the term of copyright in sound recordings (going through committee this week and due for a full vote in parliament on 18th February). I've had four responses within 24 hours - from Andrew Reed on behalf of Nigel Farage (UKIP), Ashley Mote (independent), Sharon Bowles and Cath Miller on behalf of Caroline Lucas.

UKIP oppose the directive not only on the grounds that it is EU legislation, all of which they oppose, but Mr Reed also said they would oppose such a term extension in the UK.

Mr Mote's reply was:
"Sorry, as a writer I disagree
I've responded:
"Dear Mr Mote,
As I'm also a writer I'd appreciate it if you could explain why you disagree.
Ray Corrigan
Sharon Bowles, who is a patent lawyer, sits on the parliament's legislative affairs (JURI) committee, which is considering the term extension proposal this week, and is planning to put forward some amendments. Her response in full:
"Dear Mr. Corrigan,

Thank you for your email on the extension of copyright term, which comes through its Committee stage this week.

As my background before becoming an MEP was as a patent attorney, I have an interest in intellectual property matters, and I will be very involved in the progress of this legislation as a member of the European Parliament’s Legal Affairs committee.

The background to this is that there has been a lot of high profile lobbying following a similar extension in the US. As you mentioned, Sir Cliff Richard and other leading performers have spearheaded demands for such an extension. Given that such artists had received good remuneration, I did not think their case was all that good.

I have spoken to Charlie McCreevy, the Commissioner responsible for introducing this legislation, about this issue. He pointed out that these changes were not intended to protect featured artists such as Cliff and the Beatles, but to protect session musicians who contributed to sound recordings in the late fifties and sixties.

I should mention that the Commissioner did try to stop the extra copyright unfairly advantaging the big media companies. The royalties received in the extended period would be used, among other things, to create a fund for session musicians, and an extension to the contracts that prevent musicians from re-recording will not be allowed. Record companies are now required to set up funds to pay 20% of revenue earned during the extended period. This fund goes to help session musicians and thus, in a sense, contributing to today's music culture.

In advance of the report’s introduction to the Legal Affairs committee, I have tabled a number of amendments which I hope will create a more constructive piece of legislation, and which aim to allow extension but with sensible restrictions.

Firstly I would like to see the proposed automatic extension to 95 years for all sound recordings replaced with a system whereby individual performers who have not received adequate remuneration can register for an extension of term. Whether to make an application would remain within the choice of the individual performer. This system would be transparent and an online register would be made of all extensions that have been granted.

Secondly I would like to see any extension period, made subject to a free licence of right. Such licences of right could exist for private clubs and social broadcasts of attendance not exceeding 250 (thus allowing for events such as ‘60s nights). Under this amendment no copyright levy may be applied in any extended period.

Thirdly I would like to see individual performers granted a ‘moral right’ in their performance that is unassignable and shall last for 95 years; this will be in order to prevent objectionable uses of their material. As part of this I envisage giving individual performers the right to receive unencumbered royalties in any period of extended copyright.

However, the role of media companies in delivering the recordings still has to be considered one of the most effective ways of deserving performers obtaining royalties. Therefore, we have to look carefully at their role.

As I have mentioned, the Legal Affairs Committee’s report is expected to go through the Committee stage this week, and I expect the legislation to be voted upon by the full Parliament on 18th February. Please be assured that I will be working to achieve a fair piece of legislation.

Once again thank you for writing to me on this important issue. Please do not hesitate to contact me again if I can be of any further assistance.

Yours sincerely,

Sharon Bowles MEP"
I replied thanking her for her efforts to inject some sensible amendments but nevertheless asking her again to oppose the directive. This directive is too broken to fix with amendments:
Dear Ms Bowles,

Many thanks for your prompt and considered response and I wish you luck in pursuing the thoughtful amendments you are proposing to the legislation. It is good to know there are MEPs with a deep understanding of the subject matter working to make an intellectual property directive more practical.

Having said that your proposed amendments do generate the need to monitor media companies' revenue flows much more closely than before presumably? That in turn generates political hurdles which I'm sure you understand and it has potentially significant resource implications depending on how such auditing (not to mention enforcement) were to be done.

I agree that if the legislation is to be workable the needs of all the key stakeholders, including the artists, the public and the media companies, have to be taken into consideration. As it stands, however, according to the Commission's own figures, 90% of the extra revenues would flow to the media companies, a further 9% to the top 20% of earners amongst the artists and about 1% to the remainder of artists and session musicians. The general public - one of the key generic stakeholders - pays for all this i.e. not only receives no benefits but actually funds the whole thing. (Even if you could ensure that media companies were forced to use 20% of their 90% (i.e. 18%) went into social fund schemes, it still means less than a fifth of the benefits would flow to the primary intended beneficiaries, the session musicians. Whilst I applaud the idea of requiring the media companies to set up social/pension funds, it may be better not to link them to the revenue flows which may prove very difficult to track in practice).

So term extension is an economically very inefficient way of generating social/pension funds for session musicians. Though I appreciate it is politically more difficult to sell, a direct tax, for example, which funded a pension scheme for session musicians would be much more transparent and significantly less costly both from a financial and a social perspective. As a patent lawyer you'll be intimately familiar with the issue of the social costs e.g. in relation to orphan works etc.

Commissioner McCreevy's laudable intentions to benefit the session musicians rather than the Cliff Richard's of the entertainment world can't be realised through the proposed term extension. In addition, as a chartered accountant and Irish finance minister for 7 years, Commissioner McCreevy should be intimately familiar with the kind of discounted cash flow models that demonstrate that copyright which lasts 95 years is worth more than 99%, in present value terms, of copyright that lasted forever.

I would just round off by summarising why I'm opposed to the term extension directive:
  • It's a very expensive and economically inefficient way of generating social funds for session musicians
  • The general public are the paymasters and big losers
  • The main beneficiaries are the music companies and the top earning artists i.e. not the intended beneficiaries
  • In present value terms, a 95 year term is almost equivalent to a copyright term that lasts forever
Whereas I very much appreciate your efforts to inject some balance into the directive, I would still request that you oppose it on my behalf, and certainly if it continues to go forward in its present form.

Thanks again for your prompt and informed response.

Yours sincerely,

Ray Corrigan

Cath Miller's email on behalf of the Green Party leader, Caroline Lucas, said they were working closely with Open Rights Group on the issue. Her response in full:
"Dear Ray,

Thank you for your recent email about the Copyright Term Extension Directive. Caroline has asked me to respond on her behalf. She very much agrees with you that action is needed to better reward performers but she does not believe that this legislation is the solution.

Greens are working closely with the Open Rights Group to oppose the Directive because the way it is framed profits owners of the rights to music and not performers. Record labels will be allowed to deduct “costs” from a fund intended to benefit session musicians, for example. In fact it is estimated that under this legislation 80% of profits from copyright deals would go to the media conglomerates and most of the remainder to the biggest recording artists. As you know, the European Commission’s own figures demonstrate that performers will barely benefit from the new terms.

Greens fear that the negative consequences of this legislation would include the selling of back catalogues being given priority over the creation of new music, and a loss of the benefits associated with experimenting with music from the recent past. Indeed, the European Broadcast Union has stated publicly that the proposal will make ‘consumers foot the bill while stifling innovation.’

Caroline is also worried about the watering down of plans for so called ‘orphan works’ and commercially worthless but culturally significant recordings to enter the public domain; the widening of the scope of the Directive to include audio-visual recordings; and the way that the European Commission is seeking to rush the proposals through Parliament without adequate scrutiny by MEPs.

The Green Party is committed instead to a system known as Creative Commons, which offers a flexible range of protections and freedoms for authors and artists. See http://creativecommons.org/ for further information. This position is based on a desire to encourage innovation and prevent large corporations from controlling and benefitting from our cultural legacy. She believes that, as well as developing alternative ways to support performers, writers and so forth, priority must be given to a far more open policy of sharing music, film, software etc via the internet.

Caroline appreciates you taking the time to raise this matter with her. You can read more about Caroline’s work at www.carolinelucasmep.org.uk

Kind regards,


Cath Miller

Constituency Coordinator and Researcher

Office of Dr Caroline Lucas"
And my further response...
Dear Cath,

Many thanks for your prompt and considered response. It's good to know that the Green Party is opposing the directive and encouraging to hear you are working with the Open Rights Group on the issue. I'm also pleased hear you're familiar with Creative Commons licences - not, sadly, a universal feature of the upper echelons of the big political parties.

I agree that it would be very difficult in practice to pin down record labels revenue flows in such a way as to ensure they would not effectively reneage on an obligation to support social funds to benefit session musicians. It would be less costly to the public to impose a direct tax to fund such a social welfare scheme. It would certainly be more economically efficient than extending the term of copyright and having the majority of the associated benefits flowing to the music companies and the top earning artists (and all of the costs accruing to the public).

Thanks again for your prompt and thoughtful response and good luck to Ms Lucas and the Green Party in opposing the term extension directive.



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