Tuesday, July 22, 2008

The EU Railroads Term Extension

I have avoided commenting on the EU's proposed 45 year extension for sound recordings because the effort is so clearly wrong, so clearly another example of politicians ignoring the public interest in favor of hobnobbing with (in this case aged) stars that there is nothing constructive to say. Term extension will benefit a very few a great deal, and most not at all. The public will suffer as it always has done, but because the suffering is suffered in small amounts and diffusely, politicians are spared confronting directly the ugly consequences of their failure to act in the public interest. But yesterday, a succinct letter on the topic was published in the (UK) Times online by a number of European scholars that I thought all worth reprinting. For those in the U.S., it should be noted that in Europe academics play a significant role in governmental policy and are not as politically polarized as in the States. Here it is:

From The Times
July 21, 2008

Copyright extension is the enemy of innovation
The proposed Term Extension Directive will alienate a younger generation that fails to see a principled basis

Sir, Europe’s recorded music was about to experience a wave of innovation. For the first time, a major set of culturally important artefacts was to enter the public domain: the sound recordings of the 1950s and 1960s. Apparently not so. If the European Commission has its way, re-releases and reworkings of recorded sounds will remain at the mercy of right owners for another 45 years (report, July 17). Why?

The record industry succeeded to supply the Commission with evidence that was not opened to public scrutiny: evidence that claims that consumer prices will not rise, that performing artists will earn more, and that the record industry will invest in discovering new talents, as if exclusive rights for 50 years had not provided an opportunity to earn returns.

The Commission’s explanatory memorandum states: “There was no need for external expertise.” Yet, independent external expertise exists. Unanimously, the European centres for intellectual property research have opposed the proposal. The empirical evidence has been summarised succinctly in at least three studies: the Cambridge Study for the UK Gowers Review of 2006; a study conducted by the Amsterdam Institute for Information Law for the Commission itself (2006); and the Bournemouth University statement signed by 50 leading academics in June 2008.

The simple truth is that copyright extension benefits most those who already hold rights. It benefits incumbent holders of major back-catalogues, be they record companies, ageing rock stars or, increasingly, artists’ estates. It does nothing for innovation and creativity. The proposed Term Extension Directive undermines the credibility of the copyright system. It will further alienate a younger generation that, justifiably, fails to see a principled basis.

Many of us sympathise with the financial difficulties that aspiring performers face. However, measures to benefit performers would look rather different. They would target unreasonably exploitative contracts during the existing term, and evaluate remuneration during the performer’s lifetime, not 95 years.

We call on politicians of all parties to examine the case presented to them by right holders in the light of independent evidence.

Professor Lionel Bently, Director, Centre for Intellectual Property and Information Law, University of Cambridge

Professor Pierre-Jean Benghozi, Chair in Innovation and Regulation in Digital Services; Director, Research in Economics and Management, Ecole polytechnique, CNRS 1, Paris

Professor Michael Blakeney, Co-Director, Queen Mary Intellectual Property Research Institute, University of London

Professor Nicholas Cook, Director, AHRC Research Centre for the History and Analysis of Recorded Music, Royal Holloway, University of London

Professor Dr. Thomas Dreier, Director, Centre for Information Law, Universität Karlsruhe, Karlsruhe Institute of Technology

Professor Dr Josef Drexl, Director, Max-Planck-Institute for Intellectual Property, Munich

Dr Christophe Geiger, Associate Professor and Director elect, Centre for International Industrial Property Studies (CEIPI), University of Strasbourg

Professor Johanna Gibson, Co-Director, Queen Mary Intellectual Property Research Centre, University of London

Professor Dr Reto Hilty, Director, Max-Planck-Institute for Intellectual Property, Munich

Professor Dr Thomas Hoeren, Director, Institute for Information, Telecommunications- and Media Law, M√ľnster University

Professor Bernt Hugenholtz, Director, Institute for Information Law, University of Amsterdam

Professor John Kay, Chair, British Academy Copyright Review

Professor Martin Kretschmer, Director, Centre for Intellectual Property Policy & Management, Bournemouth University

Professor Dr Annette Kur, Max-Planck-Institute for Intellectual Property, Munich
- Show quoted text -

Professor Hector MacQueen, Co-Director, SCRIPT/AHRC Centre Intellectual Property & Technology Law, University of Edinburgh

Professor Ruth Towse, Professor of the Economics of Creative Industries, Erasmus University Rotterdam and Bournemouth University

Professor Charlotte Waelde, Co-Director, SCRIPT/AHRC Centre Intellectual Property & Technology Law, University of Edinburgh


Anonymous said...

Well put. I hope the EU will listen.

recordjackethistorian said...

The first generation to be alienated will be the baby boomers. It is my generation who held hopes that massive amounts of copyright recordings would enter the public domain within out life times. Should this not happen, we will have little hope any kind of new material in the pubic domain in our lifetimes.

A generation somewhat younger than mine has already made it clear they do not believe that copyright material is the equivalent of physical property. They laugh at the idea that copying a file is like stealing a recording from a music store. How do law makers hope to keep themselves credible?

Laws are only as successful as theh public's belief in the rightness or justice is. Obviously not many believe in our current copyright regime.


Tomasz Rychlicki said...

So do I. But I also remember how some of discussions within EU bodies looked like (OGG file).
I am also aware how can one and only democratic body of all European Union's institutions be ignored by the another (which is more easily to be lobbied of course) - see: EU Council Plans to Scrap Parliamentary Vote without Discussion.
Well, we will see... actually we will be carefully watching. ;)

Anonymous said...

It's a bit of a responsibility of academics too publicly stand up against such practices, because often nobody cares until it is too late. I'm glad so many people have been willing to associate their name with this letter and I hope this public debate will put to shame those politicians who seem to be more concerned about the entertainment industry than anything else.

andrewlogie said...

Excellent letter. I looked at this in depth in my undergraduate dissertation. I've put it up if anyone wants to have a read:

Permission Culture: Copyright Term Extension, Creativity and Networked Technology

Or just read my conclusion:

The reasons given by the European Commission in their proposal are arguably unsubstantiated, and the case advanced by certain music industry organisations for extending terms would appear to defy a tide of opposition.

Extending the duration of copyright on sound recordings gives undue preference to the economic considerations of a select few, and neglects the socio-legal implications of a restrictive copyright regime. It is unwise for the European Commission to go against the evidence and extend the term on sound recordings and performers’ rights.

In a wider sense, there is a risk that as property rights strengthen, culture will become ‘locked-down’. The creative process is increasingly reliant on permission from existing rights holders, and the freedom to ‘remix’ the past is fading away. The potential that networked technology offers to foster the creation and dissemination of culture is largely dependent on an accommodating copyright regime.

Nonetheless, the ‘sharing ethic’ cultivated by users of the Internet offers a solution of sorts, in the form of a cultural commons built on licensing. Licensing schemes confront the issues presented by a diminishing public domain and permission culture, creating a more practical means by which content creators can contribute to, and benefit from, the commons. They provide practical clothing to the much needed concept of a ‘cultural environment’.

However, the voluntary nature of these communities and the increasingly commercial nature of the Internet, ensures that success is limited. Unless there is a sea-change in the approach taken by the EC and creative industries, which seems unlikely based on recent proposals, the issues facing modern content-creators will remain. It is therefore be worth considering a compulsory licensing system for all creative works if rights continue to strengthen.

Chris said...

It is important to make the distinction between proactive term extension, which affects works that have not yet been created, and retroactive term extension. The former is at least arguably a good idea, since it increases the incentive to create (though I would suggest that copyright terms are too long as it is, and we should be proactively shortening the copyright term). The latter is invariably a bad idea, since all it does is hand over new rights without any consideration.

Aapje said...


Do you really think that creators will be more productive because they potentially could earn more in 50 years? Judging by the contracts many musicians sign, they can't think more than 1 year in advance, let alone 50. On the other hand, artists that sample or reuse old material in other ways simply cannot create the works they want to make. Although it seems that more and more artists themselves ignore copyright and release 'illegal' music for free. That is the only bright spot here, many artists aren't happy with the current copyright laws themselves. Perhaps change will come from them.

Chris said...

I'm not saying that I think longer copyright terms will make creators more productive, though I think it would be a legitimate position to take. I'm just saying that proactive and retroactive term extensions are like apples and oranges, and should be treated as such for the purposes of policy discussion. I'd make the same argument if we were talking about term REDUCTION: taking (future) rights away from people is different than not giving them the rights in the first place.