Commission Proposal on a Directive for Term Extension.

The EU Commission has published a proposal for a Directive on the term of protection of copyright and certain related rights. The full text of the proposal and an “impact assessment” can be found at
 
http://ec.europa.eu/internal_market/copyright/term-protection/term-protection_en.htm
 
The Commission aims to extend the copyright protection of sound recordings from the present 50-year term to 95 years from first publication. If the directive were in effect now, it would mean that a recording made in 2010 would stay protected until the end of the year 2105. Until then, the record company would have the exclusive right to control (almost) all uses of the recording.
 
The Commission claims that the extension is necessary, because otherwise “performers face an income gap at the end of their lifetimes”. It is also necessary because record sales are declining, and the industry needs the revenue stream of half-a-century old recordings to invest in new talent. The Commission believes that the longer term would encourage record companies to reissue more historical recordings. The proposal also aims to bring European copyright law more in line with US law, and harmonise the protection of various groups of rights owners.
 
Many critics have already pointed out that the proposal is unlikely to achieve any of the stated aims. The documents published in connection with the proposal show that it is backed by evidence obtained from newspaper clippings and unpublished “research” supplied by interested parties, and it is easy to pick misleading or directly false information from the background documents. The documentation focuses on the record business in the United Kingdom, and there has been absolutely no attempt to study the potential effects of the extension in all member states. This is odd, because the UK has already rejected a similar proposal on the basis of evidence supplied by the Gowers report. It is obvious that the only real beneficiaries of the extension will be the four largest record companies, and even in their case, the benefits will be so modest that they are not likely to encourage investment in new talent. The Commission has not made any studies of the social costs of the proposal; it is just satisfied that the extension will probably not increase the retail price of records.
 
The main costs of the copyright extension are cultural and social. Just when new technology would make it possible to make a significant part of European cultural heritage freely available on the web, much of this heritage will be locked away for another half century. I shall discuss these question in greater detail in future instalments on my blog. Here I shall just summarise some of the most problematic questions raised by the proposal.
 

• The Commission notes that under the present 50-year term, in some cases the copyright protection of sound recordings ends before the death of (some of) the performers. This is true, but if this is the point, the 95-year term is far too long. A ten-year extension would be enough in almost all cases.
• The 95-year term is taken from US copyright law, and the commission states that one of the aims of the proposal is to give European recordings equal protection with the USA. In fact, the effect would be the opposite. USA has never recognised the right of record producers and performers to receive compensation for the broadcasting of their recordings. If the proposal is accepted, American records will have much stronger protection in Europe that European records will have in the USA. No European performer would trade his present protection to the protection given by US law – 95 years but no revenue from broadcasting.
• The commission wants to harmonise the protection of various groups of rights owners. However, the present proposal will extend the protection of musicians to 95 years, but leave the protection of film actors to 50 years. This is not stated anywhere in accompanying documents, but becomes clear from reading Article 1 of the proposal. “A fixation of a performance otherwise than in a phonograph” must refer to film or video. The word “phonograph” in the Directive is a translator’s error, the original German word is Tonträger, sound carrier.
• The preamble only speaks of the recording industry, but if the directive is passed, its provisions will also cover sound recordings made by broadcasters, archives and even home recordings. The European Broadcasting Union (EBU) is strongly opposed to the proposal.
• The Commission claims that the extension would not in any way restrict the use of the broadcaster’s archives, because existing agreements already cover such uses. I quote from the FAQ accompanying the press release: “A term extension for performers will not affect projects to make available a variety of historic broadcasting archives available for dissemination. These archives are covered by the blanket license that is granted by performers' collecting societies. If old performers cannot be found, the collecting society will keep his share and try to locate him: this is not a problem to be borne by the broadcaster.” This is blatantly untrue. The European Broadcasting Union has repeatedly complained to the commission that a large part of our cultural heritage preserved in broadcast archives is locked away until the present copyright terms run out. Now we have to wait another 45 years.
• The Commission claims that the proposal would not increase the payments that broadcasters make to record producers and performers, because they pay an annual lump sum for this right. This is not correct. Many European broadcasters pay a fee based on euros per minute (which shows how poorly the proposal has been researched). On the other hand, in countries where the payment is based on a lump sum, this would mean that the payments made in the future to the oldest records would be coming out of the pockets of the performers on more recent recordings. No new money would be generated, so the living would subsidise the dead.
• The proposal does not contain any references to rights in sound recordings in many new member states, where all recordings were formerly produced by a state-owned record company. Do we know who owns today the recordings made in Latvia or Slovenia in the 1960s, when these countries did not legally exist?

 My next blogs will focus on the effects of the proposal on performers' rights, the recording industry and reissues.

 
 
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).
 
Suomalaisille lukijoille: tämä ja seuraavat blogikirjoitukset on poikkeuksellisesti julkaistu englanniksi aiheen kansainvälisen merkityksen vuoksi.