EU copyright term extension in sound recordings again

Prompted by Jim Killock of the Open Rights Group I wrote to my MEPs yesterday (all ten of them) on the matter of copyright term extension. I've had 3 responses so far.  First off the mark was Andrew S. Reed of UKIP writing on behalf of Nigel Farrage. They oppose the measure.

"Dear Ray Corrigan

Your letter, opposing the copyright-term-extension, is one of many such, sent to Mr Farage, including one from the European Bureau of Library-Information and -Documentation Associations (EBLIDA) objecting to the EU's proposed copyright-legislation, which includes the extension of the term of copyright to the disproportionate length of 95 years, because this will benefit, above all, large, corporate copyright-holders, will reduce the cultural value (to the public) of works-of-art and will not materially augment the return-on-their-work for artists.

EBLIDA' message furnishes further arguments against the proposal, pointing to a torrent of ill-effects.

Such effects are characteristic of EU-legislation, which is largely designed by big business (in this case, by four large media-companies) and produced, by the EU, primarily to increase its own power.  It does this in an entirely non-democratic process. That the EU's largely powerless, consultative assembly (the so-called "parliament") is elected - by 27 separate and mutually uncommunicative electorates - does not make it democratically elected, and the real powers of the EU (in the Commission, Council and Court) are not elected at all.

This is why the UKIP votes against every piece of EU-legislation - for all the effect that has, in an assembly dominated by EU-imperialists - and bitterly opposes Britain's continued entanglement in the EU-structure.

The assembly is much lobbied, by the relevant interests, during the prelude to its voting on any particular subject; but only a few, out of many thousands of EU-Commission proposals, have been substantially amended, in the past five years, and only two have been rejected.  Indeed, lobbyists (who profit from lobbying) collude with assembly-members (who profit from appearing to be doing something) in giving the impression that the assembly is a free agent, worth lobbying.  In fact the assembly is an appendage of the Commission and either does what it's told or is not allowed to do anything.

The chances of withstanding the current proposals on copyright are, therefore, slim.

The dangers of such a system, and the damage its legislation is doing, should be pretty obvious to most people, by now; and the only way to avoid them, is to repeal the European communities Act (ECA)

UKIP is the only party genuinely dedicated to achieving the repeal of the ECA, and I hope you will consider supporting us in our campaign to achieve it.

Please see below a more detailed objection, with which UKIP agrees, to the EU's proposals on copyright, from Mr William Heath of the "Open Rights Group".

Yours sincerely,

Andrew S. Reed

(Office of Nigel Farage, Strasbourg, www.ukip.org )"

Next was Peter Skinner of Labour, who doesn't really state what his position is but he appears to support it and says that the Parliament supports the proposal and there's nothing that can be done about it.

"Dear Mr Corrigan,

Thank you for your email concerning copyright term extension. The position of the European Parliament on the Commission's proposal to amend Directive 2006/116/EC was adopted on 23 April 2009 in a vote of the full plenary of the Parliament. Full information on the legislative process and texts adopted is available at:
http://www.europarl.europa.eu/oeil/file.jsp?id=5667672

The Parliament supported the proposal, with certain amendments including a thorough review clause, with 387 votes in favour and only 152 against. This first reading position was confirmed by the Legal Affairs Committee of the newly elected Parliament in September 2009. It is not possible for the Parliament to recall the dossier, as was sought by Mr Engström, because the Parliament's first reading was re-confirmed by the new Parliament in September 2009. The legislative process was therefore concluded in the Parliament at first reading and it is now for the Council of Ministers to adopt a position on this proposal.

With best wishes,

Peter Skinner"

Then came Richard Ashworth of the Conservatives who support the proposal and produced what I presume is the standard Consrvative party response.

"Dear Mr Corrigan,

Thank you for your email in which you raise concerns with regard to the proposed Copyright Extension Directive.

I, together with my fellow Conservative MEP's, have actively followed and been involved in the debate on copyright duration, believing this is actually issue one of the major parameters for establishing the amount of protection accorded authors and other owners of copyright and I very much understand the elements you put forward. However, issues surrounding copyright extension are controversial and the level of copyright, and copyright term, are matters that have been of importance to policymakers over the last decade and together with colleagues, we support extending the copyright period.

Copyright is extremely important because it is the way artists are rewarded; businesses make their money and invest in the future. But, duration of copyright is also the principal dividing line between the property rights of these owners and the public domain - that is, the domain of unprotected works which are available to the public for unrestricted, uncompensated use. Hence, we need a copyright framework that is both flexible and accessible and the Commission proposal meets many of these requirements. In the digital age, music is readily available online and copyright provisions need to take account of market changes. Extending the term of copyright to 95 years is essential if we expect performers and the music industry to carry on investing, innovating and creating and it is only right that they are given greater protection for their investments.

In economic terms, the copyright extension would also be beneficial. We believe that the available evidence suggests an extension of the copyright term is likely to benefit consumers rather than harm them and that overall social welfare is also likely to be increase.  Longer terms  will help to encourage digitisation  of much more of existing back catalogues of music , ensuring  a cultural legacy for  thousands of recordings which would otherwise be lost as physical copies are lost or left tucked away never to be heard again.   Further, based on a review of the academic literature and the available empirical evidence on record company investment behaviour (which suggests new music is, in fact, financed out of current earnings) there are strong grounds to believe that a retrospective increase in the copyright term will enhance these benefits.

In a Price Waterhouse Report, it was shown that an extension could boost the lagging music industry by £3.3 Billion over the next 50 years. The extension would also address the distortion of competition between the United States and the EU. At a time when creative industries based on intellectual property are generating an increasing percentage of GDP in the EU, the current disparity between the term of protection in the EU and the US clearly puts British record companies and performers at a competitive disadvantage. The extension to 95 years would therefore help the competitiveness of British music industry in the global marketplace.

Furthermore, a significant gap between the length of term of protection in the EU and the US facilitates piracy, particularly in the online environment where technology enables recordings in Europe to be transmitted over the Internet to countries where recordings are still in copyright. 

The extension would also improve the social situation of performers, who have been disadvantaged by the existing 50-year term which often does not cover their lifetime. While Composers have benefited from a term of copyright that extended to the composer's life and 70 years beyond, performers have been disadvantaged but this new proposal brings parity to those involved in the music industry. 

The UK has a very strong music industry and safeguards must be put in place if we are to maintain our position in today's marketplace. The copyright extension is a first step in this direction and should be supported.

Yours sincerely,

Richard Ashworth MEP"

I've responded to all three thanking them for their prompt attention (and support in the case of UKIP) but in slightly more detail to Mr Ashworth given his claims about empirical evidence supporting the need for term extension:

"Dear Mr Ashworth,

Thank you for your prompt though disappointing reply. As an academic who has studied the technology and intellectual property story for some time I can confirm that copyright is important and that issues surrounding copyright extension are controversial.

Copyright is important for artists but if the Commission’s proposal was really aimed at performers, it would link the term to the performer’s life (or a close proxy) and it would not grant the extended term to the producers of sound recordings. It would give it to the performers themselves.

You say a review of academic literature supports music copyright term extension. I'd appreciate it if you provide me with specific references to said literature supporting term extension.

I'm not sure if you're familiar with discounted cash flow calculations, where you work out the present value of future cash flows (in a kind of a reverse compound interest calculation). Frankly a basic discounted cash flow model calculation demonstrates that a copyright term of 95 years provides very little extra economic incentive today (compared to a term of 50 years) to invest in copyrighted works. Nevertheless I would still appreciate the opportunity to examine the academic literature you believe states otherwise, so I would still appreciate those citations.

You also say that "empirical evidence on record company investment behaviour (which suggests new music is, in fact, financed out of current earnings) there are strong grounds to believe that a retrospective increase in the copyright term will enhance these benefits."  Again I'd really appreciate a reference to this evidence. Part of the problem with intellectual property policymaking has been the absence of empirical evidence informing the process.

You cite the unpublished Price Waterhouse Coopers report produced for the British Phonographic Industry (music industry trade association) in 2006 to suggest that "an extension could boost the lagging music industry by £3.3 Billion over the next 50 years". The methodology of that study has been found to be wanting in several respects. Just one example is that it suggested a range of potential losses that varied by a factor of 20 and it is risky to rely on such figures for policy making. You also suggest extension of copyright term will benefit consumers.

In addition to a paper I produced with Mark Rogers of Oxford University in 2005** indicating that consumer and social welfare is not served by copyright term extension, an eminent collection of my academic colleagues around some of Europe’s most prestigious educational institutions have concluded in an open letter to the Commission,*

"It strains credulity to claim that a term extension will provide

large benefits to the record industry, as the Commission does, while having

no impact on consumers. The record industry holds the data that would

enable an independent empirical study to settle this issue."

I look forward to hearing from you regarding the citations to academic literature and empirical evidence supporting copyright term extension in sound recordings.

Thanks for your time.

Yours sincerely,

Ray Corrigan,

Senior Lecturer in Maths, Computing and Technology, Open University; Mailing address: Open University in the South, Foxcombe Hall, Boars Hill, Oxford, OX1 5HR, UK; Tel +44 (01865) 327000; blog http://b2fxxx.blogspot.com/

* The Proposed Directive for a Copyright Term Extension – A backward-looking package

Centre for Intellectual Property Policy & Management (CIPPM, Bournemouth University), the Centre for Intellectual Property & Information Law (CIPIL, Cambridge University), the Institute for Information Law (IViR, University of Amsterdam), and the Max Planck Institute for Intellectual Property, Competition and Tax Law (Munich published).

http://www.cippm.org.uk/downloads/Term%20Statement%2027_10_08.pdf

**Corrigan, R. & Rogers, M. (2005) The Economics of Copyright World Economics Journal

Volume 6, Number 3, 2005, pages 153 – 174

http://www.world-economics-journal.com/Contents/ArticleOverview.aspx?ID=219"

I had a fourth response as I was typing this blog post, from Daniel Hannan, another Conservative:

"Dear Mr Corrigan,

Thank you for your e-mail.

You may not be aware that European constituencies were reorganised following the 1999 European elections, and MEPs were elected under a proportional representation system. Having opposed the proportional system, the four Conservative MEPs in the South East region have divided the area into four sub-constituencies, to guarantee a more direct representation for the people of the South East region.

James Elles MEP is the Conservative representative for your part of Oxfordshire.  I have, therefore, forwarded your correspondence to him for his information.

Yours sincerely,
Daniel Hannan"

I've thanked him for his response and mentioned James Elles will have heard from me directly. 

It's interesting that the Conservative Party in the EU Parliament is supporting term extension when there is a fair chance that the Prime Minister may well oppose it.