Opposing copyright term extension

First published by Linux User & Developer.

Since the Statute of Anne established copyright in 1710, the Government has refused to increase the term of copyright only twice – in 1735 and 1737. In nearly 270 years since then, we have had extension after extension in a global copyright term arms race with ‘harmonisation’ between territories best summed up as ‘Our copyright’s longer than yours. Nyer.’

Is it really going to be different this time round?

Anyone watching the debate surrounding the term of copyright on sound recordings has, for some time now, been expecting the Department of Culture, Media and Sport to announce plans for an extension. In September last year, copyright reformer Professor Lawrence Lessig spoke at the RSA in London, and as always, he was eloquent and convincing. But his conclusions were downbeat: Despite principles, he said, copyright term is bound to be extended.

Certainly the music industry hopes so. The British Phonographic Industry (BPI), and the International Federation of Phonographic Industries (IFPI), have long supported term extension, along with many recording artists, and even the industry press. Earlier this year, Music Week’s  ‘Extend The Term’ campaign touted poverty-stricken national treasure Sir Cliff Richard as it’s best example of why term extension would be a jolly good idea.

But why should we extend copyright? Here are just three of the industry’s arguments in favour of changing copyright law.

1. It’s fair
Composers and writers get life plus 70, but performers only get 50, and Sir Cliff thinks it’s not “just.”

It’s an emotive, but specious, claim relying on a playground notion of ‘fairness’. Different types of intellectual property rights (IPR) last for different terms. Patents, for example, last for 20 years, so we could argue that it’s unfair to patent holders that other IPR holders get so much protection and that copyright in all its forms should be slashed to 20 years.

David Weinberger discusses the fallacy of fairness in an article Fair But Wrong. As he says, fairness in copyright is not about a tit-for-tat exchange of value, it’s not like buying a pair of shoes.

Copyright is a bargain. When you agree to that bargain, you also agree to the conditions under which that bargain ends. When I rent a car for two weeks, it is not unfair when at the end of that fortnight the rental company asks for the car back. Indeed, it would be theft if I kept it beyond the period we’d agreed. The government grants a 50 year monopoly on sound recordings in exchange for that material going into the pubic domain when the monopoly’s up. If anything is unfair, it’s reneging on that agreement.

2. Think of the pensioners

The music industry claims that musicians from the 1950s now rely on royalty payments to pay heating and nursing home bills and that the loss of royalties will harm them.

I called Age Concern, the pensioner welfare charity, to ask if cessation of royalty payments had a significant impact on pensioners. At first they were stumped by the question because it’s not an issue they have ever come across, but after some consideration Samuel Heath, Age Concern’s Spokesperson said, “People shouldn’t base their pension on something as unpredictable as royalties. Musicians should be planning for the future and making sure their pension is as big as possible, because you never know if your songs are going to remain popular. Musicians of pensionable age who are having problems should contact Age Concern who will make sure they are getting their full benefits.”

Indeed, the Musicians Union ‘recognis[es] the crucial importance of making an ongoing financial provision for later years’ and helps its members to find suitable pensions, and also has a benevolent fund for musicians who have hit hard times.

Of course, if the music industry is really concerned about old musicians’ income when copyright expires, they could simply continue to pay a portion of their profits to the original artist – there’s no law to prevent it. But whether EMI decides to continue to pay Sir Cliff voluntary royalties on Living Doll when it goes public domain in 2009 is a matter for EMI to decide.

3. After 50 years, musicians lose everything
The belief is that when copyright expires, musicians can no longer earn money from their recordings, but this is a fundamental misunderstanding of copyright and the public domain. Copyright is a monopoly – whilst a recording is under copyright the rights holder has complete control over it. When that work falls into the public domain, that monopoly is lifted and anyone can exploit it – including the original artist if they so wish. The difference is that they now can’t stop others from exploiting it too.

Only a tiny minority of music recorded 50 years ago is still available to buy and earning money for the people who own the rights and, sometimes, those who recorded it. The majority is not, but record labels don’t give the rights for non-profitable music back to the musicians. Instead, these recordings languish in their archives, forgotten and unheard.

For these musicians, the sooner their material goes into the public domain the better – it means that they then get a chance to re-release it themselves, whether as digital downloads, home-burnt CDs or a superduper DVD collectible edition with all the bells and whistles. All they need to do to stay legal is make sure they pay the composers the royalties due them.

Ironically, people like Sir Cliff are well placed to make more money when their recordings go public domain. He still has a lot of fans, people who would be delighted to buy a ‘Best of Sir Cliff, with notes from the man himself’ compilation, and he can easily afford to hire people to do it for him. Of course, he may find himself competing with EMI, but he has the advantage: He is Cliff.

The musicians whose back catalogue has been locked away by their record label won’t get this chance if Sir Cliff gets his way.

In October 2005, the RSA launched Adelphi Charter (http://www.adelphicharter.org/), which “sets out new principles for copyrights and patents, and calls on governments to apply a new public interest test. It promotes a new, fair, user-friendly and efficient way of handing out intellectual property rights in the 21st century.”

The Adelphi Charter advises politicians and legislators that:

  • There must be an automatic presumption against creating new areas of intellectual property protection, extending existing privileges or extending the duration of rights.
  • The burden of proof in such cases must lie on the advocates of change.

In this case, the advocates of change, the music industry, have not provided sufficient proof that extending copyright will do anyone but them any good. There are many more arguments for and against term extension than those mentioned here, and they are discussed on the Open Rights Group’s new website, Release The Music. If you feel strongly about opposing term extension for sound recordings, please visit our site and sign our petition.