Commission Proposal on a Directive for Term Extension. Two days in Brussels

The European Parliament has now started debating the Commission’s proposal to extend the protection of sound recordings from 50 to 95 years. I was one of the few outsiders who attended the first hearing on November 9th at JURI, the Parliament’s Legal Affairs Committee, at the invitation of the UK-based Open Rights Group.
 
The EU Commission has claimed that the extension will benefit recording artist and companies, without any cost to consumers and users of recordings, such as broadcasters. Critics have pointed out that the proposal is unlikely to achieve any of these aims. Not surprisingly, opinions at the hearing were divided. John Kennedy, chairman of the International Federation of the Phonographic Industry expressed his full support to the proposal, while Lionel Bently, professor of copyright law at Cambridge led the critics. The Commission was represented by Tilman Leuder, head of the copyright unit, who naturally spoke for the extension.
 
What was interesting about the debate was the degree of heat which it generated. The criticism has already shown that there are gaps in the Commission’s assessment of the effects of the directive. In the final analysis, the optimal duration of copyright protection is a political decision. One can find justifications for a ten year term of protection, or two hundred years. However, Leuder insisted on finding new excuses for the extension. According to him, the Commission has an obligation to extend the term, because Greece already has a longer term than the rest of the EU.
 
This is interesting, because the special features of Greek copyright law were already noted in 1993, when the Union’s copyright laws were first harmonised, and Greece was granted an exception. Saying that the EU has to follow Greece is a bit like saying that all European countries have to legalise snuff, because Sweden has an exception to allow this unhealthy practice, which is deeply rooted in Swedish folk tradition. Moreover, there is no mention of the Greek case in the Directive and the impact assessment.
 
Greek copyright law differs from all other European countries in the sense that musicians are protected for 50 years or lifetime, whichever is longer, while record producers only have the standard 50 years. This means that after 50 years, the rights in sound recordings automatically pass to any surviving musicians. I have not been able to find out how this functions in practice, but it is an interesting idea, and the new Directive proposed by the Commission will in fact weaken the position of Greek musicians vis-à-vis record producers. It will be interesting to see how the Greek government will handle this, if the Directive is passed.
 
Leuder also insisted that there is no proof that the price of public domain recordings (recordings whose copyright has expired) will be any lower than protected recordings, refuting evidence presented by Bently. Of course it is true that there is not much evidence either way, because all the “research” on this topic has been based on very small samples, but my own experience points in the other way. There was no mention of large-scale digital archives, such as The European Library, where public domain content would be available free.
 
The discussion of the Directive will now continue in four committees: Legal Affairs, Culture, Internal Market, and Industry. Talks with several MEP’s revealed that many are dissatisfied with the Commission’s proposal, and in particular the 95-year term was felt to be excessive. On the other hand, there have also been moves in the other direction, and MEP Christopher Heaton-Harris has already filed an amendment which would in practice abolish the take it or leave it-clause. Heaton-Harris also suggests that the 20 % share promised to musicians in certain cases should be calculated from net rather than gross revenue.

The deadline for amendments is 20th November, and the Legal Affairs Committee will vote on the directive on January 19th. So if you have any personal viewpoints on the Directive, now is the time to contact your own MEP in Brussels.
 
For the full story of the Copyright Directive, you can read my earlier blog at
http://blogit.yle.fi/node/2230
 
 
 

 
 
Pekka Gronow is sound archivist and adjunct professor of ethnomusicology at the University of Helsinki. He is the author of numerous books and articles on the recording industry, including “An International History of the Recording Industry” (2000).
 
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