Commission Proposal on a Directive for Term Extension. The rights of the performers
The EU Commission has recently proposed an extension of the copyright protection of sound recordings from 50 to 95 years. The complete documents can be found at
http://ec.europa.eu/internal_market/copyright/term-protection/term-protection_en.htm
The Commission writes that “If nothing is done, over the next 10 years an increasing amount of performances recorded and released between 1957 and 1967 will lose protection. Once their performance fixed in a phonogram is no longer protected, around 7000 performers in any of the big Member States and a correspondingly smaller number in the smaller Member States will lose all of their income that derives from contractual royalties and statutory remuneration claims from broadcasting and public communication of their performances in bars and discotheques”. The Commission further notes that “the social situation of performers is not very secure (…) Many European performers start their careers in their early 20’s. That means that when the current 50 year protection ends, they will be in their 70’s (…) performers face an income gap at the end of their lifetimes”.
It is easy to sympathise with the economic situation of performers; very few of them are in the highest income brackets with the stars. But the wording of the text immediately arouses suspicions. What will the performers “lose”? If I do not get a raise in my salary, do I “lose” a thousand euros? A person cannot lose something which he never had. I may deserve a raise, the performers may deserve stronger copyright protection, but if nothing is done, they do not “lose” anything. They get exactly what has been agreed.
As the Commission notes, there are two categories of recording artists: session musicians and “featured artists”. The session musicians are the accompanists who do not get their names on the label. They are paid for their work according to rates negotiated by the Musicians’ Union. They get paid even if the record does not sell any copies. If they are sensible, they save part of their income or take pension insurance for their old age. This is standard practice in all professions where the practitioners are freelancers or private entrepreneurs.
Fifty years ago this was all the musicians got. They were never promised anything else. Copyright in sound recordings did not yet exist in most European countries. The Scandinavian countries introduced “neighbouring rights” in 1961, and since that year, musicians have received remuneration for the broadcasting of their recordings. Originally protection lasted for 25 years from first publication, until it was extended to 50 years in the 1990s. British copyright law did protect sound recordings already in the 1950s, but the benefits did not extend to session musicians.
Since 1961, copyright in sound recordings has been expanded in several ways. In addition to broadcasting, musicians now receive remuneration for the private copying and public performance of their recordings. One might say that this has now become part of the “compensation package” and is taken into account when negotiating session fees, but for musicians who worked in the late 1950s and 1960s it has been a windfall which was never promised to them when the job was done.
Featured artists, the artists whose names are on the album cover have different arrangements. Some are just paid a flat fee like session musicians, but most featured artists have royalty-based remuneration. The better the record sells, the more they are paid. They also get income from broadcasting and other secondary uses like session musicians (in many countries a larger share). Both groups have already benefited considerably from changes in copyright law since the 1960s.
It is also important to note that even if the protection of a musician’s earliest recordings expires 50 years after first publication, he or his heirs will usually continue to receive income from later recordings far beyond his year of death. Sir Cliff Richard – I use him as an example as he has actively participated in this debate – made his first recordings in 1958, and their copyright will expire next year. But he continued to record at least until 1993, so under the present term, he can receive income from recordings at least until 2044, when he will be more than a hundred years old. Making records was never his only source of income; he was a popular stage performer. Presumably he has saved some of this income for his old age. The gloomy picture painted by the commission – “performers facing an income gap at the end of their lifetimes” mainly applies to the one-hit wonder who made one record in his teens and has never since had any gainful employment.
One might still argue that musicians deserve more. After all, composers and other authors are protected 70 years from their year of death (they got a 20-year extension from the EU ten years ago). As a recording may have more than a hundred right owners (every musician who plays on the record), it would not be practical to calculate the protection from the death of the performers, but under present laws, some musicians do live longer than the copyrights of the recordings they made in their youth. But no one will live so long that 95 years from first publication is necessary.
Starting from the fact that performers are not “losing” anything if nothing is done, what will they gain if the protection is extended by another 45 years? Most musicians will still not get anything, as the majority of 50-year old records are not being used commercially. Featured musicians will get royalties from CD and web sales of their old recordings – if there are any sales. Both groups will continue to receive remuneration from airplay and other secondary uses, if any. There is also a new regulation in the proposed directive which will guarantee session musicians a share of the eventual revenue from the sale of 50 – 95 –year old recordings, but 20 % of nothing is nothing.
(Incidentally, it is interesting to note that the Commission’s proposal would slightly diminish the income of some musicians. This is because in some countries – not in all countries, as the Commission claims - radio stations pay a lump sum for all the records they broadcast annually. If the proposed extension will not increase the payments, the same sum will be divided among a greater number of recipients; living performers will support the heirs of their dead colleagues).
It is somewhat troubling that the commission has not presented any numerical calculations of the income which performers can expect if the proposal is passed. After all, record companies know quite well how much their back catalogue sells today. Remuneration from broadcasting and other secondary sources is collected and distributed by national collecting societies which have detailed information on the airplay of all recordings. It seems fair to assume that records which are 50 year old today will receive, on the maximum, the same amount of airplay in the future.
I recently made a survey of all records broadcast by YLE, the national public broadcaster of Finland in 2007. The full results will be published later, but it can be mentioned that of all records broadcast in 2007, more than 20 % had been published in the same year. Only 2 % of airtime went to recordings from 1968, and 0,2 % to recordings first published in 1958. Commercial radio stations in Finland typically do not play any records more than ten years old. The money that YLE pays to the Finnish collecting society Gramex is split 50-50 between producers and performers, after administrative costs have been deduced. The performers’ share is divided among all the participants according to a formula developed by Gramex; featured artists get somewhat more than backing musicians.
If Finland already had 95-year protection of sound recordings today, the biggest beneficiary would have been the estate of Elvis Presley – but it would not have gotten anything, as USA has not joined the Rome convention. I have tentatively calculated that only one or two European artists would have received more than a hundred euros extra if the extension had already been in force in 2007. Most would only have gotten pennies.
Will performers benefit from the proposed extension? Very little. If there really are as many as 70,000 European musicians who will “lose” their royalties, the money generated by the proposed extension will be divided among so many persons that in most cases the resulting sums will not even cover bank charges. The only beneficiaries will be the few record companies with large back catalogues – I’ll return to this in the next instalment.
Additional comments can be found in my previous blog . The next blogs will comment on the extension's effects on the recording industry and reissues.
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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.
