The Effects of the Extension of European Copyright in Sound Recordings to 70 year

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Alan Bunting Explains The Implications Of This Latest EU Legislation

On September 9th 2011, the Council Of Ministers of The European Parliament voted in favour of the Amended Proposal for the extension of copyright in sound recordings from 50 to 70 years, thus making it a Directive. It almost marked the end of a long campaign by the record companies to retain the right to make yet more money from artists such as Cliff Richard, some of whose recordings are already out of copyright, and The Beatles whose first two singles will be 50 years old in 2012.

I say ‘almost’ because it does not become law until each member country of the EU passes their own legislation to implement it, and they have a maximum of 2 years in which to do it. This means that, in extremis, it may not become law in the UK until September 2013, although the record industry will doubtless apply enormous pressure on the government to make it happen sooner.

Media reports on the implications of the Directive have been confused and, in numerous cases, inaccurate. This is because many commentators have based their conclusions and opinions on the Original Proposal as published in 2008 rather than the Amended Proposal of 2009 which contained significant changes not widely publicised.

Not only the media failed to understand the implications of the amendments - so did many of the MEPs who voted in favour back in 2009 as well as artists, including Cliff Richard, who erroneously claimed that his recordings which were already out of copyright would come back into copyright. Even the European Commission’s own WEB site published a précis of the Directive which contained incorrect interpretations of parts of it (quickly amended the day after I pointed out the errors to the UK’s Intellectual Property Office).

There are still several aspects which remain far from clear - I will discuss these later, but first let me try to explain in plain English what the Directive will mean once implemented.

Recordings still in copyright (i.e. less than 50 years old) will have their copyright extended from 50 years (known as the “first term”) to 70 years. It does not revive copyright, so recordings already out of copyright will remain so. This means that if the Directive becomes law during 2012 recordings made up to December 31st 1961 are not affected because they are already out of copyright. If implemented during 2013, then recordings up to the end of 1962 remain Public Domain and freely available for anyone to re-issue. Some commentators have claimed, although I’m not clear why, that it could be 2014 before it actually becomes law, in which case the cut-off point would be December 1963.

So, if your interest is only in recordings made before the early 1960s you need read no further - record companies such as Avid, Guild, Jasmine, Retrospective, Sepia, Vocalion et al will be free to continue re-issuing them as they do now, although it must be made clear that only the recording and performance are Public Domain. The copyrights of the lyricist, composer and / or arranger remain in force for 70 years after their death and appropriate royalties must be paid via MCPS in the UK, or its equivalent in other countries, as they are at present.

That was the straight forward bit - things become more complicated when we discuss newer recordings, i.e. those still in copyright at the time the Directive becomes law. The original Proposal had a section, often referred to as “use it or lose it” which in effect said that if, at the end of the 50 year term, the recording was not available to the public, it automatically became Public Domain. Unfortunately, amendments to the Proposal changed much of this sensible concept, resulting in this part of the Directive being not only confusing but, in some aspects, possibly unworkable.

To unravel the ramifications of “use it or lose it” as it will be under the Directive one must understand that a sound recording (called a “phonogram” in the Directive) involves three different copyrights. First there is the copyright in the recording itself (“the fixation”). This copyright is the property of “the producer”, who for simplicity we will assume to be a record company. The second is the copyright in “the performance” which is the property of the artist or artists (“the performer”), unless they have assigned it to the record company, and the third is that of the lyricist, composer and/or arranger which, as I have already explained, is not affected by the new legislation.

The key paragraph in the Directive referring to performers’ rights says:

If, 50 years after the phonogram was lawfully published, or failing such publication, 50 years after it was lawfully communicated to the public, the phonogram producer does not offer copies of the phonogram for sale in sufficient quantity or does not make it available to the public, by wire or wireless means, in such a way that members of the public may access it from a place and at a time individually chosen by them, the performer may terminate the contract whereby he has transferred or assigned his rights in the fixation of his performance to a phonogram producer (hereinafter, a "contract on transfer or assignment"). The right to terminate the contract may be exercised if the producer, within a year from the notification by the performer of his intention to terminate the contract pursuant to the previous sentence, does not carry out both acts of exploitation mentioned in that sentence. This right to terminate may not be waived by the performer. Where a phonogram contains the fixation of the performances of a plurality of performers, they may terminate their contracts on transfer or assignment in accordance with the applicable national law. If the contract on transfer or assignment is terminated pursuant to this paragraph, the rights of the phonogram producer in the phonogram shall expire.

This means that if, at the end of the 50 year term, a recording is not in a record company’s catalogue and available to the consumer, the artist may request the transfer of their performers rights. If the record company subsequently does not make the recording available to the public within a year, the copyright in the performance transfers to the artist and the recording itself becomes Public Domain. Once this has happened, although the recording may be re-issued by a third party without the record company’s permission, anyone doing so, in addition to paying composer royalties as they do now, would also have to pay royalties to the performer. How the mechanics of this process will work has not yet been explained. Nor is it clear whether the right to re-issue the recording would be automatic provided the appropriate artist royalties are paid (as with composer royalties), or if the artist’s permission would be required.

If the record company does have the recording in its catalogue, or if not and their response to the artist’s request for transfer is to re-issue the recording, they retain the copyright. However, nothing in the Directive says they must then keep it in their catalogue for the full 70 year term. It should also be noted that “re-issue” and “making available” do not necessarily mean on a CD via record shops - it could be made available for listening or down-load by means of a low quality Internet connection.

There will be many cases where the artist has no interest in transferring their rights, and probably more where the artist is dead. If, for whatever reason, the artist doesn’t request transfer of their performer’s rights, the recording and performance remain the copyright of the record company, even if it isn't in their catalogue and, in many cases, may not have been for 40 years or more. Nor is there any obligation for them to make it available, resulting in access to thousands of recordings being denied to the consumer until the end of the 70 year term as other companies will not be able to re-issue them.

Anyone with the stamina to read the whole Directive will have noticed that, for the most part, it refers to “The Artist” and “The Performer”, thus giving the impression that the majority of recordings involve only one person. This, of course, is not so and I estimate that considerably less than 1% of all the recordings ever made meet this criterion. So what happens if we are dealing with a four person ‘pop’ group - do all four have to individually request the transfer of their performers’ rights? What if one of them is dead - the Directive makes no mention of the heirs or estates of performers? What if we are talking about the original cast recording of a stage musical - does the whole cast plus the orchestra and the musical director have to apply? None of these aspects are dealt with in the Directive except for one sentence in the paragraph already quoted above which says “Where a phonogram contains the fixation of the performances of a plurality of performers, they may terminate their contracts on transfer or assignment in accordance with the applicable national law.” I have attempted to find out what the UK’s “applicable national law” has to say about this but so far without success.

Much publicity has been given to the section that deals with the new arrangements for payments to session musicians and backing singers who usually received a one-off fee for their efforts and thus didn’t share in the success of a recording. Again, one has to question how these will work. I understand that the PPL repertoire database, which is currently used to decide what royalties are due to who, does not have any details of session musicians and singers for many of the recordings of the 1960s and 1970s. For example, I wonder if Sir Cliff could tell us the names of the 20 plus musicians and backing singers who helped him make “Summer Holiday” such a hit? And if we are talking about the kind of music of rather more interest to most JIM readers, finding out who played on Ron Goodwin’s 1964 album “633 Squadron” would be almost impossible, to say nothing of investigating if they are still alive, where they now live and then arranging payments. Furthermore, as Ron Goodwin is no longer with us, who exactly is “the artist” in terms of this section of the Directive?

If it is supposed to work the other way round and musicians and singers are expected to claim their payments, how are they going to find out if a recording from a session they did 50 years ago has or has not been re-issued and how can they prove that they were involved, assuming that they even remember? Despite all the claims that artists, backing musicians and singers will benefit, the truth is that very few will. Independent studies estimate that 80% of performers might receive between £5 and £50 a year - hardy the “pension” that has been trumpeted.

One aspect I haven’t mentioned is that the Directive makes no mention of how it will apply to recordings not made in Europe. What happens when an American recording reaches its 50th anniversary and isn’t in the catalogue either in Europe or the USA? If I manage to find the answer to this and all the other questions I will let you know!

I could go on about this flawed and unwelcome piece of legislation and how it might work but I will end by reminding readers that the two reviews commissioned by the UK Government (Gowers and Hargreaves) were both strongly against it. Indeed, Hargreaves said: Economic evidence is clear that the likely deadweight loss to the economy exceeds any additional incentivising effect which might result from the extension of copyright term beyond its present levels.Make no mistake, the likely outcome is that the UK economy will suffer, the record companies will get richer, most artists won’t, and our cultural heritage will be the poorer.

Journal Into Melody Editor David Ades adds his personal views ....

"Unneccessary and Unworkable"

Those two words sum up my feelings. "Unnecessary" because the professed desire of the record companies to provide pensions for musicians must be the most stinking red herring of all time; and "unworkable" because the record companies may well have landed themselves with an enormous administrative headache they will surely come to regret.

I could write pages to condemn the extension of sound copyright, but readers don't deserve to have to endure such a diatribe. Suffice it to say that record companies could easily reward musicians by granting them fair contracts and - most important of all - keeping their recordings available so that people will buy them and royalties accrue.

Every learned organisation that has been asked to investigate the subject of sound copyright has come down firmly against extending the period beyond 50 years - some have said it should be reduced, not increased. One of these was commissioned by the European Union itself. Why has it chosen to ignore the findings? One cannot escape coming to the conclusion that something underhand has taken place, and the public are the losers.

Recordings from the early 1960s onwards are likely to be locked away in record companies' vaults for an extra 20 years, depriving some music lovers of the chance to hear their favourite artists, unless they happen to be big sellers. The poor composers, who have lost the opportunity to earn royalties from reissues, appear to have been completely ignored.

Of course, the big unanswered question is: "what is the real future for sound copyright?" Anyone who has a computer will know that there are millions of pieces of music - not to mention videos - available at the click of a mouse, absolutely free of charge. The people who have uploaded these millions of items won't have bothered to approach the copyright owners and offer them fees.

The simple fact is that modern technology has made the enforcement of copyright virtually impossible. If the record companies had succeeded in getting this legislation enacted 20 or 30 years ago it might have had some meaning. But in the 21st century it is, in effect, an irrelevance, and one wonders why this fact has escaped the faceless EU officials who are wasting everyone's time and money forcing it through.

This article appeared in ‘Journal Into Melody’ issue 190, December 2011.

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