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European Commission proposes copyright extension Directive

The European Commission has proposed a Directive that would give performers rights over recordings for 95 years after the recording. The change would give a player on a recording rights for the same length of time as the writer of the material.16 Jul 2008

EU Competition Commissioner Charlie McCreevy has tried before to increase the term of copyright protection for performers but has previously lost the argument. The EU's commissioners have now decided to propose a Directive, though, extending the term from 50 to 95 years.

"I am committed to concentrate all necessary efforts to ensure that performers have a decent income and that there will be a European-based music industry in the years to come," said McCreevy.

Opponents argue, though, that sound recordings of 50 years' old or more should be released from copyright in order to benefit all society. They say that extending copyright terms will only benefit the players on the very small portion of 50-year-old recordings that are still available to buy.

"Major record labels want to keep control of sound recordings well beyond the current 50-year term so that they can continue to make marginal profits from the few recordings that are still commercially viable half a century after they were laid down," said a statement from Sound Copyright, a group of rights activists that lobbies against the extension. "Yet if the balance of copyright tips in their favour, it will damage the music industry as a whole, and also individual artists, libraries, academics, businesses and the public."

"A 95-year term would bridge the income gap that performers face when they turn 70, just as their early performances recorded in their 20s would lose protection. They will continue to be eligible for broadcast remuneration, remuneration for performances in public places, such as bars and discotheques, and compensation payments for private copying of their performances.

A proposal from the Commission can only become a Directive once it has been adopted by the European Parliament and the Council of Ministers.

The Commission said that it did not believe that the move would prevent sound recordings from dropping in price because it said that evidence showed there to be no difference between the prices of music that is in copyright and music that is out of copyright.

The writers of music and lyrics have their copyright protected for 70 years after their death. McCreevy has also proposed a change in law which would ensure that that protection ran from the death of the last surviving author. Some EU countries operate separate terms from the deaths of individual co-authors.

Critics claim that the move will keep music out of the hands of remixers or other artists wishing to use it to create new sounds. The Commission, though, said that music which was neglected would pass into the public domain.

"If neither the record producer nor the performer shows any interest in marketing the sound recording within a year after term extension, the sound recording will not be protected any longer. It will be freely available for public use," said the Commission.

The Treasury-commissioned Gowers Report on Intellectual Property of 2006 has been the basis of UK intellectual property policy ever since. Author Andrew Gowers, the ex-editor of the Financial Times, told OUT-LAW Radio last year that he had considered and dismissed term extension and had, in fact, considered reducing it to below 50 years.

"Our conclusions were roundly criticised by the music industry in particular for actually doing the non-revolutionary thing of leaving the status quo in place, i.e. 50 years' term protection for sound recordings," he said. "I could have made a case for reducing it based on the economic arguments."

"We certainly considered it, and if you look at the report that came from the academics that we commissioned to examine the arguments and examine the evidence they also argued very robustly that 50 years could be arguably more than enough," said Gowers. "In the end we took the politically prudent course," he said.

The Commission, though, said that it did not agree with Gowers' analysis. "As [the Review] reasons against copyright extension based on economic analysis alone, the Commission feels that this cannot be the whole story," said a Commission statement. "The Commission believes that copyright represents a moral right of the performer to control the use of his work and earn a living from his performance, at least during his lifetime."