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European Commission is misleading EU on copyright extension, says academic

The European Commission "wilfully ignored" studies that it paid for whose conclusions disagreed with its policy and the Commission is misleading the European Union Council, Parliament and citizens over copyright extension, a leading academic has warned.26 Aug 2008

Professor Bernt Hugenholtz is the director of the University of Amsterdam's Institute for Information Law (IViR) and has written an open letter to Commissioner Jose Manuel Barroso that is starkly critical of its controversial policies on copyright extension.

The Commission last month published its intention to extend the term of copyright on sound to 95 years after the recording has been made, giving the player of an instrument on a recording a similar length of protection as that given to the writer of the music.

Hugenholtz accused the Commission of "wilfully ignoring scientific analysis and evidence" in its policy making process.

The IViR conducted two in-depth studies on this and related issues which were commissioned and paid for by the Commission, but found that none of the evidence of arguments raised in those papers seemed to be used as the basis of Commission policy.

The fact that those studies had no perceptible impact on decisions is unacceptable, said Hugenholtz.

"The Commission's obscuration of the IViR studies and its failure to confront the critical arguments made therein seem to reveal an intention to mislead the Council and the Parliament, as well as the citizens of the European Union," he wrote.

He said that the studies were robust pieces of work that have had an influence on others' deliberations.

"Since their completion and publication, both studies have attracted considerable attention in scholarly circles and among stakeholders and continue to play an important role in informing the current debate on the future of copyright law and policy in the EU," said Hugenholtz in his letter. "It comes therefore as a complete surprise to us to discover that our studies have been almost entirely ignored in the [Commission's] so-called 'forward looking package' on Intellectual Property."

Hugenholtz points out that a number of studies carried out by industry and other groups with an interest in the outcome of the debate were referenced by the Commission's policy documents, but that his institute's independent academic studies were not. The studies rejected the arguments in favour of term extension.

The professor said that the Commission has been inconsistent about whether it believes that independent analysis and advice is necessary.

"Amazingly and quite misleadingly, the Explanatory Memorandum states that '[T]here was no need for external expertise'. This is patently untrue, as the terms of reference of the Recasting Study, which were drawn up by the European Commission … expressly asked for the examination of, among other issues, the need for a term extension and the issue of co-written musical works," he said.

Hugenholtz conceded that academic work should not necessarily immediately become governmental policy, but said that it should at least be taken into account.

"We are, of course, well aware that several conclusions of the IViR studies do not agree with the policy choices underlying the Commission's proposals. And we are certainly not so naïve as to expect that the recommendations of an academic institution such as ours, however well researched and conceived they may be, will find their way into the Commission's policies in undiluted form," he said.

"What we would expect however is that our work, which was expressly commissioned by the policy unit in charge of these proposals, be given the appropriate consideration by the Commission and be duly referenced in its policy documents, in particular wherever the Commission's policy choices depart from our studies' main recommendations."

The issue of the extension of copyright in sound recordings has been a controversial one. In 2006 the Gowers Review of Intellectual Property published its report in which it recommended that sound recording copyright protection be kept to the existing 50 year term.

Expertise in Copyright

Copyright is an extremely valuable, often unrecognised or misunderstood right which protects a whole range of original materials including written materials, software, artistic materials, music and dramatic works. It arises automatically without the need for registration in most countries and protects these materials from unauthorised copying. It is essential in business to identify such rights, ensure they are owned by the correct entity, properly protected, enforced and exploited.

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