Another 45 Years of Protection in the EU for Performers and Record Companies? Academics Hope Not

Next Monday, the EU Parliament will vote on a directive that would retroactively extend copyright in performer’s performances and sound recordings (as they are called here in Canada) from 50 to 95 years. The proposal has been met with strong opposition from the European academic community, including an impressive, 100 strong, list of academics against the directive. Those opposing the extension are particularly concerned by what they see as an abrupt change in position that goes against numerous independent studies on the issue.

For example, they point to the 2005/2006 UK Government commissioned Gowers Review of Intellectual Property. Included among its 54 recommendations were both that “The European Commission should retain the length of protection on sound recordings and performers’ rights at 50 years” and that “Policy makers should adopt the principle that the term and scope of protection for IP rights should not be altered retrospectively.”

For its part, the explanatory memorandum that accompanies the proposed directive explains that  “[t]he proposal aims to improve the social situation of performers, and in particular sessions musicians, taking into account that performers are increasingly outliving the existing 50 year period of protection for their performances.” But the group of academics against the measure say these benefits will be marginal and will come at a cost to the public.

They point out that because of power imbalances in contracting with record companies, only a small percentage of ‘featured’ performers will see any significant additional revenue from sales and that your average performer will see only a meagre increase with most going to record companies.  The proposal itself seems to agree with this view but points to secondary sources of revenue from collective rights agencies from which it says even smaller performers will be able to continue to benefit. The critics counter that unless the licensing fees change, with the cost being borne by the public, earnings from these funds will not grow as they will simply be split between more recipients for a longer period of time and past their deaths.

In contrast, the critics highlight the benefits to the major record companies. They argue that if the central motivation is to help living performers, there are better alternatives including:

1. limit the term to the artist’s life,
2. make such an extended term not transferable to record producers (labels),
3. regulate that the extended period will be managed via collecting societies (ensuring that sound recordings will become available), and
4. regulate contracts during the existing term (e.g. by introducing use-it-or lose- it provisions).

In addition to the moral arguments in favour of supporting performers’ livelihoods, the proposed directive argues that increases record companies would see will help them make additional important investments in new artists. The proposal highlights the losses in revenue seen by recording companies from decreased CD sales and piracy. Finally, the proposal points out the disparity between the term of protection for authors and that given to performers.

These represent only a portion of the arguments that have been made on this issue, as can be seen in the long list of reports referenced in the above documents.

Debates concerning term extensions however are not new and, successful or not, this won’t be the last one. Part of the underlying tension over copyright term extension is that these term lengths are fairly arbitrary and there seems to be continual demand for more extensions. At some point we need to ask what length would permanently satisfy the most ardent supporters of term extensions.