Extension of the copyright term for performers proposed to the EC

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

On 14 February 2008, EU Internal Market Commissioner Charlie McCreevy
announced his intention to propose to the European Commission (EC), in the
next several months, an extension of the copyright term for performers from
50 to 95 years. This proposal should be ready for adoption by the Commission
before the summer break of 2008.

As a justification to his action, Commissioner McCreevy stated: “I strongly
believe that copyright protection for Europe’s performers represents a moral
right to control the use of their work and earn a living from their
performances. I have not seen a convincing reason why a composer of music
should benefit from a term of copyright which extends to the composer’s life
and 70 years beyond, while the performer should only enjoy 50 years, often
not even covering his lifetime It is the performer who gives life to the
composition and while most of us have no idea who wrote our favourite song –
we can usually name the performer.”

The Commissioner also believes the extension would have no negative impact
upon the consumer prices as studies show that the price of sound recordings
that are out of copyright is not necessarily lower than the ones under
copyright and no negative impact upon Europe’s external trade balance as
most of the additional revenues collected during the extended term would
remain in Europe for European performers.

The same proposal was made in UK in May 2007 as a result of the lobby made
by some artists such as Cliff Richard and Roger Daltry (from the Who) to the
UK Government. However, in July 2007, the UK Government took the decision to
reject the proposal.

The Recast study of the Dutch Institute for Information Law, commissioned by
the European Commission and issued in November 2007, dealt
with the topic and its conclusions were unfavourable to an extension of the
copyright term for performers.

“Overall one can say that a term extension would indeed benefit those
performing artists that are still popular after 50 years and still receive
payments from collecting societies and/or participate in the revenues from
the sales of their recordings – providing they have not signed away their
rights against a single fee (…) the share of recordings that are still
commercially valuable after 50 years makes up for only a small part of the
overall repertoire. Benefits from a term extension would therefore only
accrue to a limited share of performing artists. For the larger part of
performers that do not derive substantial revenues after 50 years, a term
extension could -depending on the contractual setting- prevent their
recordings from either being commercially exploited by a secondary party or
by themselves; or from becoming accessible to the general public” reads the
report.

The report concludes that: “The authors of this study are not convinced by
the arguments made in favour of a term extension. The term of protection
currently laid down in the Term Directive (50 years from fixation or other
triggering event) is already well above the minimum standard of the Rome
Convention (20 years), and substantially longer than the terms that
previously existed in many Member States. (…) Perceived from an
international perspective the American terms are anomalous and cannot serve
as a legal justification for extending the terms of related rights in the
EU.”

In August 2007, the EDRi-member Open Rights Group also published a very
strong opinion against the extension of the copyright term explaining that
the extension of the term would “discourage innovation, stunt the reissues
market, and irrevocably damage future artists’ and the general public’s
access to their cultural heritage”. In the Group’s opinion, the ones to
benefit from the term extension would certainly not be “the vast majority
of recording artists (…) Because artists generally do not receive any
royalty payments until the record label has covered the cost of production
and promotion, this means that 80% of recording artists receive no royalties
from their records. Their only income from recording is the non-refundable
advance against royalties paid to them by the label so that they can survive
whilst working on their album (…) royalty rates are set by the recording
company and agreed in binding contracts which usually include pages of
restrictions on how the artist can earn money (…) Like any business,
record companies are trying to maximise their income.”

Gowers Review also recommended the rejection of the proposal on the basis of
a study carried out by a specialist team at the University of Cambridge
which found only a weak economic increase as a result of the extension of
the term (a 2% gain in the industry revenues) with increased costs imposed
on the wider economy and society.

Performing artists – no longer be the ‘poor cousins’ of the music business
(14.02.2008)
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/240

EU commissioner: Let’s extend music copyrights to 95 years. Ars: 50 years is
plenty (14.02.2008)
http://arstechnica.com/news.ars/post/20080214-eu-commissioner-lets-extend-music-copyrights-to-95-years-ars-50-years-is-plenty.html

EU proposes to allow artists to collect royalties for 95 years (15.02.2008)
http://euobserver.com/9/25669

Longer Copyright Terms and Poor Performing Artists (15.02.2008)
http://www.jorisvanhoboken.nl/?p=131

Release the Music – Should the term of copyright protection for sound
recordings be extended? (08.2007)
http://www.openrightsgroup.org/uploads/releasethemusic_aug07.pdf