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As the debate heads to the European Parliament, a long ramble on copyright extension

By | Published on Tuesday 3 February 2009

Good news and bad news for you, people, following a meeting at the Houses Of Parliament last night hosted by the Parliamentary Jazz Appreciation Group ahead of a debate in the European Parliament on the much previously discussed Copyright Term Directive, proposals initiated by European Internal Market Commissioner Charlie McCreevy to increase the copyright term for recordings in Europe from fifty to 95 years.

As previously reported, while the UK government’s 2006 Gowers Review of copyright law said there was no case to increase the sound recording copyright, since McCreevy tabled his proposals at a European level Britain’s Culture Minister Andy Burnham has said the current cabinet is basically in favour of term extension, though not necessarily as far as 95 years (70 years has been muted as a compromise).

And last night Burnham’s colleague David Lammy who, as the minister responsible for intellectual property is actually the man in charge of this issue, reaffirmed that commitment in pretty bold terms. “I am hugely sympathetic to the case made by the performer community on this issue,” he told the meeting. “The case has been made. The government accepts the case. My job isn’t to debate the case for extension, it’s to move this debate on from establishing the case to actuality. Opinions on this vary across Europe – so there needs to be some canny footwork to make this happen”.

So that’s the good news, and given there does seem to be some distance between where Burnham and Lammy stand on that other big issue – making ISPs police internet piracy – the music business will be glad to see that Lammy is as supportive on the extension issue as his more cultural colleague.

Lammy, though, isn’t backing the basic copyright expansion for the good of the ‘music business’, rather for the musicians and performers who stand to benefit for any increase in copyright term. He was quite bold about that point too: “We are doing this to benefit performers. And that’s it, full stop. We’re not doing this to benefit the industry. If the industry does benefit as a result, that’s great, but that’s not our motivation”.

Now, we should note that last night’s meeting was very much focused on individual performers rather than music companies, and Lammy was surrounded by performers as he spoke; four of whom had kicked off the proceedings by explaining how important the modest royalties enjoyed by jobbing musicians are in enabling them to afford to live, especially in their later years when they may not be able to perform so regularly. But Lammy does seem to genuinely care about securing a better copyright deal for musicians, and does seem genuinely ambivalent towards record companies.

Of course the record companies, who also quite fancy earning off their recordings for 95 rather than 50 years, have frequently pushed the performer dimension of the copyright extension debate to the foreground, it being easier to feel sorry for session musicians on meagre incomes than for multinational corporations.

It’s a good strategy, because if Lammy et al do push an extension through for the good of the performers then the record labels will indeed “benefit as a result”, and much more so than the performer community who, while due a cut of royalties generated by recordings they were involved in (contractually on all royalties in the case of featured artists, and by statute for all artists in the case of broadcast royalties), in reality earn meagre percentages compared to the labels.

The only down side for the labels is that both McCreavy and Lammy are aware of this. The former has, as previously reported, written extra proposals into his copyright extension plan that skew the financial benefits of a longer copyright term slightly more in the performers’ direction. Which is all well and good, except it makes the whole thing a lot more complicated than it needs to be. And when you make things complicated on a European level that can add months and sometimes years to the debate.

Lammy and his civil service colleague, Ian Fletcher, top man at the UK’s IP Office, last night reported that pretty much every country in Europe has a different opinion on quite how the interests of corporates and performers should be balanced in the term extension debate, meaning that getting a pan-European consensus isn’t as simple as compromising on a figure somewhere between 50 and 95 and making that the term length.

Given that those talks have to be fit in to a crowded European Union diary, and a diary that will get all cluttered up with the big European elections that will take place in June, it could be that general support the “case” for extension takes a very long time to become an “actuality”.

Which will be irritating for record companies, because really the ‘relationship between musicians and copyright law’ (which is minimal – performers’ only automatic rights being a share of someone else’s copyright – ie the recording producer) and the ‘term extension proposals’ are two separate debates and while the former may strengthen the case for the latter it also makes what should be a simple question to answer – should the copyright on recordings be more than fifty years? – quite a complicated one to tackle. Which means it could be years before the term extension is approved by European types and finally incorporated into UK law. That, in case you wondered, is the bad news.

Still, let’s not dwell on the challenges to come, and let’s instead remember that two years ago British labels and performers were heading to Europe because no one would accept the case (any case) for copyright extension in Whitehall. I think the message to take from last night’s meeting in Westminster is that, while Lammy and co may not sympathise much with the labels’ extension claims, and may not be especially set on an extension as far as 95 years, they will be telling MEPs and EC officials that the case for performers to receive royalty cheques past fifty years is a given, and that attention should now be put on how to make that happen.

Which is, I reckon, a move in the right direction. Well, unless you oppose copyright extension on all levels, in which case I think you lost the debate.