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EU Extension of Copyright Term to 70 Years

By Nili Wexler

On September 12th the Ministers of the European Union voted to extend copyright protection for performances of recorded music to 70 years from the date of the original recording. EU member states will have two years in which to incorporate these changes in their national legislation.

Voting with the 17- member majority were the United Kingdom, France and Spain. In a press release, the EU elaborated on its reasoning: "[p]erformers generally start their careers young and the current term of protection of 50 years often does not protect their performances for their entire lifetime. Therefore, some performers face an income gap at the end of their lifetimes." (http://www.nytimes.com/2011/09/13/business/global/eu-extends-royalty-protection-to-music-performers-and-producers.html?_r=1.)

This decision comes after a two-year long struggle by major record labels and by artists such as Paul McCartney and Cliff Richards, who sought to protect their rights in their works which would have otherwise expired in their lifetimes. These artists, along with other star artists of the 1960s, were due to lose copyright protection in their music. In the United Kingdom, the ruling is being termed "Cliff Richards' Law", as Mr. Richards led the campaign when his 1958 hit "Move It" lost its copyright protection. Joining Mr. Richards and Mr. McCartney were nearly 40,000 other musicians.

The copyright extension presents a windfall for a music industry that has faced decreasing revenues since digital music downloading, and who anticipate increased revenue from this extension. Last year, global sales of recorded music fell by nine percent to $15.9 billion. Notably, advocates of the amended law were unsuccessful in gaining an extension to the 95 year term used in the United States.

Musicians and music company executives have greeted the extension with elation. Opera singer Placido Domingo welcomed the extension as "great news for performing artists." (http://www.ifpi.org/content/section_news/20110912.html.) Francis Moore, the chief executive of IFPI, cited the improvement of "conditions for new investment in talent as a benefit that will accrue to both record companies and new artists who now enjoy a prolonged copyright period." (http://www.ifpi.org/content/section_news/20110912.html.) Supporters of the extension have expressed that it reflects a new fairness in the recognition of performers as crucial to a song's success by narrowing the gap between the protection extended to performers and the composers and authors of the songs.

IMPALA, the Independent Music Companies Association, argues that the extension will be particularly favorable for smaller record labels and artists. Helen Smith, executive chair of IMPALA claims, "Those most affected by the extension will be [the] hundreds of thousands of individual artists and performers, as well as thousands of micro, small and medium-sized companies...at a time when certain interests seek to weaken copyright for their own purposes, this sends a vital message that the right of creators to earn a living is taken seriously by the EU." (http://online.wsj.com/article/BT-CO-20110912-709354.html.)

Further, the new law includes the so-called "use it or lose it clause" to afford additional protection for the artists. This clause provides a springing copyright to artists if music companies that otherwise own the copyright fail to market the recording within "a reasonable period of time."

Not everyone is thrilled about the new law. In opposing the extension, EU member state Belgium argued that the move would largely benefit music producers over struggling musicians and artists. Belgium was joined by some industry observers in questioning how widely the benefits of the extension would be distributed. For example, Steve Gordon, a music attorney in the U.S., similarly cautions that the move may benefit recording companies, "superstar" artists who own their own recordings, and those who managed to negotiate a larger than normal royalty agreement, but that "it will probably offer little help to lesser-known artists." (http://www.digitalmusicnews.com/stories/091111eu.)

The argument that the move is simply a boon for recording companies who will not extend these benefits to artists was echoed by Shane Richmond, a writer for The Telegraph. He argues that recording companies clearly are not concerned with the best interests of their artists, and cites the U.S. termination rights issue as an example. A 1976 amendment in the U.S. (made law in 1978) allowed artists to reclaim their rights in recordings after 35 years. Some artists may begin claiming these rights in 2013, and Richmond asserts that what is expected is "that the record labels will argue that these artists were 'work for hire' and therefore not entitled to their rights back. Labels like to talk about the rights of artists until the artists' interests' conflict with their own. How will the IFPI spin this argument? We'll see soon enough." (http://www.telegraph.co.uk/technology/news/8759524/Will-copyright-extensions-ever-end.html.)

Some critics went so far as to attempt to block the extension. Chris Engstrom, along with 40 other members of the European Parliament asked the EU for a review of the recent decision, but their request was denied. Engstrom criticized the extension as an effort to "keep the various lobbyists for big business happy, in this case the big record companies that own the rights to 80 percent of all music that has been recorded in history. If the copyright term extension goes through this week, they will be very happy with their politicians who delivered." (http://www.pcworld.com/article/239533/pirate_politician_calls_for_block_on_eu_copyright_extension.html)

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This page contains a single entry from the blog posted on September 18, 2011 3:29 PM.

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