The Term Extension Argument

by on February 3, 2009

So I’ve been asking my MEPs what their position is on the proposed EU extension of copyright term in sound recordings. The motion, as  currently tabled, calls for copyright to be extended from its current 50 year term to as much as 75 years plus the life of the artist. I am in strong opposition to any extension, but not in any particularly rigorous way, so I thought it would be good for me to examine the arguments to better understand why it is  our elected representatives in Europe seem determined to flush culture and common sense down the toilet.

Here is a summary of the main arguments put forward, and my rather amateur thoughts interjected (thanks Ben for some hints here too). This is based on a reply to an email sent to me by one my MEPs, anonymous because they have yet to reply to my request for publication.

On the European Commission’s proposals I have contacted my colleague Malcolm Harbour MEP who is the Conservative spokesman on Internal Market and Consumer Protection. He understands that 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. He has actively followed and been involved in the debate and is of the opinion that Copyright is extremely important because it is the way artists are rewarded, businesses make their money and invest in the future.

Copyright is indeed extremely important, but that doesn’t mean more of it is better. In any case, the way artists are rewarded in the music and recording industries is by the mechanism of contract, not copyright directly. Contract overrides copyright in almost all jurisdictions – a point well worth bearing in mind in any discussion about “protecting artists.” In most cases, these contracts make them little more than the indentured servants of record labels.

He believes that we need a copyright framework that is both flexible and accessible and the Commission proposal meets many of these requirements. He says that in the digital age, music is readily available online and copyright provisions need to take account of market changes.

Why is extending the term of sound copyright a useful response to the existence of the Internet? Is contract law not enough? More importantly, what alternatives have been considered to take account of these market changes that actually benefit artists as opposed to record labels? I would say that the Internet represents a golden opportunity for artists to make more money through direct sales to their listeners, for instance.

He thinks that extending the term of copyright to ninety-five 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.

The music industry has existed perfectly well with a 50 year term so far. How does extending copyright offer an incentive to create something? Is there any evidence that artists are deciding not to record music because they would only benefit from it for 50 years? In any case, even with the much-vaunted “long tail” facilitated by the Internet, sales of music from before 1959 are vanishingly close to zero.  Most sits locked away in archives and broadcasters’ vaults and represents no commercial value to anyone. There is no reason to suspect that contemporary music will not escape that fate under the current, let alone extended, copyright term.

Mr. Harbour notes that in economic terms, the copyright extension would also be beneficial. In a Price Waterhouse Report, it was shown that an extension could boost the lagging music industry by £3.3 Billion over the next fifty years. He points out that 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, he believes that 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. Mr. Harbour says that the extension to ninety-five years would therefore help the competitiveness of British music industry in the global marketplace.

The PWC study was funded by the BPI. Its findings were in marked contrast to all other similar studies. Why are we not considering the Gowers and IViR reports, or the University of Amsterdam and Bournemeouth studies? Legislating simply to pass money from consumers into the hands of an industry is not something I would support. The PWC study seems to me to have been a deliberate (and apparently highly effective) attempt to mislead the EC.

Furthermore, Mr. Harbour tells me that 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.

So one man’s piracy is  another man’s right of access. That is a remarkably facile argument made even more facile by a complete disregard for applying other remedies for this situation.

Mr. Harbour believes that the extension would also improve the social situation of performers, who he feels have been disadvantaged by the existing fifty year term which often does not cover their lifetime. He says that while composers have benefited from a term of copyright that extended to the composer’s life and seventy years beyond, performers have been disadvantaged but he believes that this new proposal brings parity to those involved in the music industry.

I have a general objection to this, which is that anyone who does a job of work should be paid once, not almost in perpetuity. That any other arrangement should exist seems to me to be extremely odd.  There is nothing about the way artists work that would prevent them from paying into retirement pensions like anyone else, and nothing that makes me think we should work to perpetuate the already iniquitous system of copyright. But my objections to this are also socio-economic: long copyright terms encourage copyright holders (record labels and publishers) to rely on milking the popularity of the past at the expense of encouraging innovation in the present. That is not something I want to support.

Mr. Harbour believes that the UK has a very strong music industry and that safeguards must be put in place if we are to maintain our position in today’s marketplace. Mr. Harbour feels the copyright extension is a first step in this direction and should be supported.

I am therefore unclear as to why term extension is being called for. Is it to protect artists, or the recording industry that relies on them? In some ways I would be happier if the EU styled this as simply a bail-out in the same way as other industry rescue bids, because that’s all it seems to be. The closer I get to the facts, the clearer it seems that the EU is simply being directed by commercial interests at the expense of the consumer, the cultural traditions that rely on a healthy public domain, and society as a whole.  Until I see evidence that the non-commercial effects of copyright term extension have been considered, I will oppose this bill.

On another general point: the blind extension of copyrights of all kinds simply to please the media industry brings with it an extreme risk of copyright itself being fatally undermined. Most people today are already committing petty acts of copyright infringement daily, and often without knowing it. If we carry on like this, we will one day be forced either to criminalise a whole generation, or disregard the institution of overly-broad and inflexible copyright laws. Both situations would be intolerable. Piracy is obviously a problem, but so is copyright maximalism in response.

Comments

Interesting point that only song performers will get an extension – not people who dance, or work in the theatre. The more you realise the more unjust the whole thing is.

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