The European Union’s Term of Protection Directive has been ratified, extending the term of copyright protection in the EU for sound recordings and performers’ rights from 50 years to 70. The directive is expected to be implemented by EU member states by 2014.
Copyrights in sound recordings currently run for 50 years from the year of recording, or 50 years from date of release if released outwith that year, and usually lie with the “producer” who has made the arrangements for the recording – typically the record company. Performers’ rights in sound recordings entitles them to contractual royalties on the sale and other exploitation of the recordings, and statutory remuneration from the copyright owner each time their work is played in public (though in practice most performers have relatively complicated contractual relationships, requiring their royalties from exploitation of recordings to be paid to their record company).
This traditional 50-year term of protection for sound recordings and performers’ rights was based on the principle that authors, such as music composers, should be entitled to a longer term of protection for their works (the life of the author plus 70 years) because their rights are linked to their personality and creative contribution, whereas the sound recording and performers’ rights typically arise from economic investment, and are usually owned by corporate bodies (the record companies).
The result of the 50-year term was that record companies became increasingly agitated during the noughties, as digital piracy led to plummeting revenue from record sales, whilst, simultaneously, valuable copyrights in classic 1960s recordings edged towards expiry.
The 2004 European Commission Staff Working Paper, the UK’s Gowers Review of 2006, and the European Community-commissioned IVIR Report of 2006 all considered the question of an extension, reaching the same conclusion: that it was undesirable on both economic and theoretical grounds, and that the extension would benefit record companies far more than the performers. For example, if the extension was solely to benefit performers during their lifetime, then why was an extension of up to 95 years being proposed? Why also were performers’ rights not an unalienable right of the performer? And why did the extension have to apply to the sound recordings at all? This year’s UK Hargreaves Report (which we blogged about in May) also noted scepticism about claims that the extension would spur creativity, noting drily that “no one has yet discovered a mechanism for incentivising the deceased”.
In recent years however this evidence-based approach to the debate, founded on economic reasoning, has been obscured by increasingly desperate and emotive arguments. Lobbyists representing record companies have sought to supplant the rather unappealing spectacle of big business protecting lucrative assets with an image which has been calculated to attract greater public sympathy: the beloved yet unrewarded music performer.
A major participant in the campaign for extension has been Sir Cliff Richard, whose performer’s rights in his string of breakthrough hits had either expired or were very close to doing so. The participation of artists such as Sir Cliff has clouded the issues. The Gowers Review noted that even in the most favourable scenario of additional revenue, the performing artists would receive only 1 percent or less of it, and in a highly uneven distribution favouring very few already very successful musicians. If the goal of the proposed reform was genuinely about helping a large number of artists, noted Gowers, then overhauling the relevant contract law would be much more effective.
It seems curious that someone as wealthy as Cliff Richard would bother to get involved with this issue. Of course, over the last decade he has become obsessed with getting a final No. 1 record, a quest which reached its’ nadir with the horrendous 21st Century Christmas. Should we expect a single sometime in the near future from a trendy chart-topping young buck like Tinie Tempah or Pixie Lott, prominently featuring a sample from a Cliff performance? If so, “Congratulations” would be the obvious candidate!
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