Copyright on UK music recordings – why no extension?

You may have already heard the UK’s Labour government’s recent review – and ultimate refusal – to grant an extension to the copyright life of sound recordings has not gone down well in the music industry; among recording artists and the labels producing and distributing their work alike. (See the BBC News web article: “No copyright extension for songs”)

Now I read on the BBC News website the other day that another recording artist has entered the fray about the dispute over extending the UK’s music recording copyright lifespan – the difference being this one is a MP.

Ex-Runrig keyboardist Pete Wishart, now Scottish National Party MP for Perth and North Perthshire, is – by virtue of being in his current job – reflecting the concerns of recording artists unlucky enough not be the Beatles, BeeGees, or Cliff Richard. And the concern he reflects will not just be by the voice he adds to the debate in Parliament, it’s the fact of his own experience, being this; a vast majority of recording artists enjoy only a brief spell in the music industry, likely never to achieve enduring fame, and who for whatever reason move on. Regardless though, royalties earned from their performances are a vital income stream down the years, however small.

But under current copyright law that income stream is soon to stop flowing for recording artists reaching their twilight years, whose first records were cut in the late 1950s and early ‘60s.

Though the protests of the older rich and (still) famous artists, aggrieved at the impending loss of revenue, has received some perhaps understandable scorn, Pete Wishart’s pointing behind the limelight to their less successful and supporting compatriots’ plight, many to whom these royalties are an important extra income, as well his highlighting the potential compromising effect it will have on the UK’s creative sector, has both my interest and sympathy.

After all, in this day and age when there is no longer such a thing as a “job for life”, with people living longer, and when a pension crisis has already risen well over the horizon and looms with no money to cover the shortfall, it appears absurd the government isn’t leaping on an opportunity to keep older artists in coin without having to pay for it themselves…while earning a little more tax revenue from it at the same time.

The reason this is all such a headache for the recording artist is because, when it comes to duration of copyright under law, they are the poor IP relation. At the time when some years back I was doing my initial researches into the what, whys and wherefores of UK copyright law, it struck me as odd the various categories of created works that could be classified as copyrightable seemed to have such varied life spans. Copyright on novels and fiction works survived seventy years after the author’s death; movies and broadcast programmes fifty years after the death of the last co-author (producer/director). Even composers had seventy years after their demise for their families to rake it in from their jottings along the scales. But, live or die, recording artists get fifty years. Period.

The British Phonographic Industry had been campaigning for an extension up to 95 years, thereby bringing it into alignment with US law. No surprise then when Gordon Brown commissioned Andrew Gowers, former editor of the Financial Times, to produce the report, which – delivered before the end of last year – recommended that an extension to the current fifty year copyright lifespan should not occur, this caused an understandable upset.

It staggers the imagination to think our own government appears unwilling to help one of our best cultural exports. We have the foremost music business in Europe. Wishart’s arguments aside, surely an extension of copyright of songs will also allow rights holders a longer timeframe in which to recoup more revenue to offset their losses through music piracy – perhaps now more pervasive and damaging than ever before (£77M a year for CD counterfeits alone according to the BPI).

Sadly however this is not the first time the hobbling of a successful home grown industry has been meted out by the current Chancellor. Brown pulled the rug from under the film industry in 2004 by precipitously closing loopholes in film industry tax incentives for UK co-productions. The logic wasn’t the problem that time – it was the execution; at a stroke killing stone dead a number of movies either prepping for or in production at the time, and terminating the employment of hundreds of people and contracts with facilities houses. It took six months for the industry to recover, and was the major contributor to film production dropping 40% that year. Nice one, future PM.

This begs the questions; is Labour in its heart truly pro-arts, and does it think seriously about the consequences of its actions?

At the same time, this debate has made me wonder whether there’s not an argument for a rationalisation of copyright life; the creation of a single, umbrella life-span, thereby creating a level playing field, regardless from which creative category your IP came. Then if you extend or reduce, you are doing so to all works in all areas. This idea I’m sure is provocative; advocates for each creative area will likely have arguments why their copyright should either have the life it does, or in all probability why it should be extended further. All no doubt would want it to match the copyright category with the maximum term already legislated.

Anyway for now it seems we have to lump it with the messy system we have.

In the meantime a 5,000 strong petition by musicians and recording artists within the UK industry has been signed, expressing concern over Gowers’ review. Let’s see if that and Pete Wishart’s contribution to the debate make any difference. Otherwise the lobbyists for an extension will have to take their case to Europe.

For any recording artists reading, the moral of this tale is; if you wish to earn a living in the music business, don’t just invest your energies honing your performance craft – think of your pension and your families… and push into song writing too.

www.dulynoted.co.uk

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4 Comments to “Copyright on UK music recordings – why no extension?”

By nonrival, 20 January, 2007 @ 8:21 pm

If you check the consolidated version of the Copyright Designs and Patents Act 1988 you’ll find that the duration of film copyights is actually seventy years after the death of one of the four named principals, not fifty.

I think the problem with your analysis is that it dos not taken into account the interests of subsequent generations of creators in having access to their predecessor’s works as raw materials for new creations. One man’s information output is another’s input and you don’t need to be a copyright radical to recognise that extending the duration is simply making it more expensive for today’s producers to make new works.
By dulynoteduk, 23 January, 2007 @ 12:14 am

Thanks for your comment, Nonrival. I appreciate your feedback – even when I’m being put right on my facts!

In my researches I did my best by going to the source; the CDPA 1988, checking too for any amendments re life extensions, seeing of course as the Act is almost twenty years old now. However in paraphrasing the terms for the blog I lumped together in my mind the durations for films – which is as you stated – and broadcasts, which is fifty years straight. Mea culpa. So thanks for putting me right.

Despite this significant difference, it’s a curious thing that – at least according to the UK’s Patent Office website page on Film & TV copyright – we both appear to be wrong; it states fifty years from the date of broadcast only. It appears to have a bias against film; the duration of copyright for movies isn’t stated at all. A demonstration that – even within official communiqués – this disparity of copyright terms causes unnecessary and frustrating confusion! (Another argument for parity of lifetimes…?)

I suppose one answer to your argument is – and forgive me if this sounds a little facetious – why should music producers have reliance upon exploitation of old works in order to create new works? Are today’s producers dealing with such a dearth of imagination in their industry and themselves/their artists they feel it necessary to raid the back-catalogues?

I accept there will always be a desire on the part of recording artists to produce covers of past hits (and personally hearing some of the results I wish they’d resisted the temptation!), but surely that output is in percentage terms minute enough as to not be of significant impact, and – with the higher proportion of work produced being original compositions anyway – the music industry as a whole should surely be robust enough to deal with an extension of copyright. Publishers seem to deal with their novelists’ copyright term well, content enough it appears to commission “sequels” of well known titles after expiry; or with permission of their estate if still within the term. Film producers pay filmmakers to produce remakes of their classics. If one wants to take that route and use a predecessor creator’s work rather than create something entirely new, then accept there’s a price to pay. Perhaps we should look at the US music industry and ask whether US recording artists and their producers and distributors are being harmed by their 95 year copyright life.

Or perhaps I’ve misinterpreted your final paragraph, and you’re coming from the standpoint of “fair use/fair dealing”? By this I’m guessing you mean that future composers and songwriters should have right to “quote” within their new compositions previous song smiths’ work, as authors do within their novels, short stories/articles, without need to pay? Would this be a way to effectively make sampling of others’ songs free?

In the end, I come back to the one-time, out of public favour recording artist who may well require that revenue. Do we think of them, or the new hot-shot who absolutely positively must have their end of copyright golden oldie to produce their next hit?
By nonrival, 23 January, 2007 @ 3:34 pm

Firstly it is understandable that there is confusion about UK copyright law, given that the statutory materials available on the web are for the most part hopelessly out of date, It is pathetic that neither the Office of Public Service Information or BAILI offer the amended and consolidated version of the 1988 Act. One shudders to think at the confusion this creates amongst those who either (a) believe themselves to be rightsholders or (b) those wishing to use a work that may be protected.

To return to the oiginal point however: the duration of a film copyright is seventy years from the death of the last of the four designated principals. The fifty year protection (from date of broadcast) is, to my understanding, aimed at preventing ’signal piracy’ and unauthorised rebroadcasts. In the case of a film shown on television there are two distinct rights:
the copyright in the original work(ie the film, protected for life plus seventy);
the right in the specific broadcast (fifty eyears from first date of broadcast).

In the United States there are no rights in broadcasts as such, and this is one of the reasons for the controversy over the proposed WIPO Broadcast Treaty.

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I will return to your wider point at another time, but my argument is normative: the bundle of rights covered by copyright are protects too much for too long. The benefit of this over-protection accrues to intermediaries rather than to ‘creators’; invoking the interests of creators as a group to justify the extension of protection is unconvincing.

In addition the law does not take into account the tools now in the hands of users and the consequences for the distribution and creation of works. Attempts to impose an ill-fitting regime on the behaviour of ordinary users (eg p2p) are doomed to fail and can only have negative consequences.

I cannot do these arguments merit here on the fly, but believe that the current structure of the cultural industry is not to be protected.
By dulynoteduk, 23 January, 2007 @ 8:02 pm

Thanks again for your clarification of the film/broadcast duration variance.

Opportunity here for further debate, for sure. I agree absolutely the intermediaries can and do benefit too much at the expense of the original rights holders/creators, so I welcome the dawn of internet tools allowing opportunities for creatives to prosper better from their own work without so much reliance upon “middlemen”. It will be interesting indeed to watch how the commercial world of the direct creator/user interface develops, and whether it is sustainable in the long term, or will somehow again be appropriated by intermediaries. How the law too, predictably and inevitably sluggish as it is, will respond will also be interesting.