MEPs rush through copyright term extension

From Sound Copyright (ORG and the EFF):

"The flawed proposal to extend the term of copyright protection afforded to sound recordings, robbing consumers in the name of performers but for the benefit of the world’s four major record labels, is being fast-tracked through the democratic process. Earlier this month MEPs from the relevant European Parliament committees presented their draft reports at a meeting of the legal affairs committee (JURI), the Committee which will make recommendations to the European Parliament on how to vote on the Directive early next year. They proposed a host of worrying new amendments which threaten to:

• Weaken further already inadequate measures intended to allow orphan works, and commercially worthless but culturally significant recordings to pass into the public domain (Culture (CULT), Internal Market (IMCO) and the Industry, Technology and Research (ITRE) committees draft reports).

• Allow record labels to deduct “costs” from a fund intended to benefit session musicians, further shrinking the pot of money made available to performers in favour of labels (IMCO committee draft report).

• Dramatically widen the scope of the Directive to include audio-visual recording, even though no relevant impact assessment has been conducted into what effect this might have on consumers and follow-on innovators. (JURI and ITRE committee draft reports).

At the JURI meeting, Dr Lionel Bently of the Centre for Intellectual Property and Information Law (CIPIL) Cambridge, dismissed the proposal stating that “record producers will gain the lion’s share of revenues on sales in the extended term”. He warned that the Directive would accrue serious social and economic costs, and concluded that MEPs should “oppose this measure in its totality.”

Bently is not the only expert to oppose the Directive. In an open letter to MEPs, Europe’s leading intellectual property research centres unanimously condemned the proposal. The European Broadcast Union has also stated publicly that the proposal will make consumers foot the bill while stifling innovation.

Earlier this month ORG met with MEPs in the European Parliament to express our serious concerns about the proposal. We warned that the European Commission’s own figures demonstrate that performers will benefit little from the extended term, while the world’s four major record labels will gain millions of Euros direct from consumer’s pockets. We argued that this damaged the respect necessary for a functioning IP system.

But our voice is not as powerful as yours. It’s vital that you contact your MEPs now and tell them why term extension is bad news.

With all the evidence pointing against this measure, you can call on your MEPs to put a stop to bad IP law and reject this proposal. You can also also tell the appropriate government department in your own EU country (in the UK it is DCMS), as they will be meeting in the Council of Ministers to discuss term extension.

With the European elections next year, Parliament is set to move quickly on this issue. It’s up to you to remind your representatives that their job is to look out for your interests, not to rush through bad law."

Leading IP experts from all round the EU have written to the President of EU Commission in June, the Times in July, (at which point William Patry supported them), opposing this ill-conceived copyright term extension. In August Professor Bernt Hugenholtz wrote an open letter to the President of the EU Commission Jose Manuel Barroso criticising the Commission's moves on copyright for ignoring the evidence presented in EU commissioned studies. August also saw my submission (excuse the format, if anyone would like a pdf copy let me know), ORG's submission and various others to the UK Intellectual Property Office consultation on EU copyright term extension, opposing such an extension. ORG said at the time:

"Our submission shows that 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. Meanwhile the major labels will be dividing up millions in extra handouts every year.

What’s more, performing artists will make no extra revenue from radio airplay and other income streams arising from so-called “secondary remuneration rights”, and may even make less. The Commission assumes that fees paid by users of recordings, e.g. broadcasters, will remain constant. That means the amount of earnings available to performers will not be any bigger - it will just be sliced more thinly and distributed longer to more rightsholders. Performers will not earn any more over their life time, and are likely to earn less, as money will be transferred from the living to the estates of the dead.

The proposal is set to cost hundreds of millions to consumers, with repercussions to the public interest, follow-on innovators and cultural diversity. It serves as a windfall for an industry the Commission would have us believe is immune from simple economic logic. No wonder Europe’s leading copyright thinker - and adviser to the European Commission - has accused the Commission of wilfully misleading the European Parliament, and the citizens of the European Union."

October rolled on and saw a continuance of Lionel Bently, Martin Kretschmer, Bernt Hugenholtz and cos' efforts to expose members of the EU parliament to some common sense thinking on copyright term extension. They said:

"Instead of doing their economic homework, the Commission offers a misleading story about performers facing "an income gap at the end of their lifetimes" [Explanatory Memorandum to Proposed Directive, p. 4; Press releases 14 February 2008 and 16 July 2008]. The language of "artists who lose their pension when they need it most" is copied directly from lobby documents supplied to the Commission by the record industry. Extension is then dressed up as a "social measure".

The most cursory analysis will show that nothing could be further from the truth. Under the current 50 year term, a track recorded when a performer was 25 will be protected until age 75. If the artist continued recording throughout her performing life, the current term will most likely outlast the performer's lifespan. Not a single artist has a life expectancy of 45 years at age 75 – yet this is the extension the Commission proposes. If the Commission really wanted to help performers, it would (i) limit the term to the artist's life, (ii) make such a term not available to record producers (labels), and (iii) look at recording contracts during the existing term. Any independent assessment will show the "ageing performers" argument as a smoke screen.

The chief beneficiaries from extension are:

1. Major rightholder who control a back catalogue of records that reaches back further than 50 years. The four major multinational record companies Universal, Sony BMG, Warner Music and EMI own almost all the key records that would benefit from retrospective extension.

2. Best-selling artists such as Cliff Richard, Johnny Hallyday, and their future estates. Is channelling money to estates a productive measure?

3. Collecting societies who will process increased income either from airplay or a social fund (and take a commission for it).

4. Minor beneficiaries are ordinary working performers. The bottom 80% of performers would each receive between € 4 and € 58 a year (calculation based on Commission's own figures). Some of these benefits however come at the costs of younger performers just entering the profession, as the same pot of money will have to be shared by more artists, many of whom are or will be dead.

The contrast between marginal benefits to ordinary performers, and huge benefits to multinational producers is stark. The costs of copyright extension will be borne by European society as a whole through higher prices and licence fees, stymied innovation, and hindered diversity."

In addition they provided:

- specific independent responses to the Commission's Frequently Asked Questions template

- 4 page analysis of key economic data

- a list of academic submissions opposing term extension

- a long list of prestigious academics who have actively opposed the copyright term extension plan.

In November Lionel Bentley testified before the EU Parliament's JURI (legislative affairs) committee and asked them to oppose the directive on term extension in its entirety. He pointed out that

- the main beneficiaries would be the 4 big record labels and best selling artists

- the social costs would be huge

- the average benefits to session musicians supposedly targeted by the proposal would be miniscule

- the justification for legislating in relation to a single group of performers was unclear especially when the primary benefits would in practice flow elsewhere and impose costs on the public amounting to €1 billion.

Who are the politicians listening to, however? That seems all too clear and it's not the academic experts or the public interest groups