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.
