Extension of Copyright in Sound Recordings

1.2 In 2006, the EU Commissioner for Internal Market Directorate asked the Dutch Institute for Information Law (iVIR) to examine the case for extending term, whilst in the UK, the Government commissioned an independent study (the "Gowers review") to examine whether term extension was a good idea for the UK creative economy.

2.1 The purpose of this memorandum is to highlight aspects and conclusions of these independent reports and offer options available to the EU.

3.1 the British Government Treasury report "Gowers" found only a weak economic case in favour of extending term, but a strong economic case against. It concluded that term extension would result in increased costs imposed on the wider economy and society.

4.1 Natural rights depend upon the claim that the labour involved in creating a work generates a property right over the products of that labour. The relevance of such arguments in the context of sound recordings is that creators of other kinds of work (literary, musical, dramatic, films etc) receive protection for the life of the creator plus 70 years. It is therefore argued that performers whose performances are embodied in sound recordings should likewise be recognized as creators worthy of a similar level of protection. A related argument is that copyright rewards creators for their effort, and that they have a natural right to the fruits of their labours. However copyright is an agreement between owners of rights and society. Since mechanical rights were introduced in the UK in 1911 it has been assumed that the writer or composer, being original creators of an artistic work should receive copyright protection for their life time plus a period when their estate can benefit from protection. However it has been considered that performers of artistic works should receive a limited protection of 50 years since the performance is an interpretation of an artist work not the creation of one. Of course a performer who creates his own music has copyright protection as a creator in addition to the limited protection as a performer.

4.2. Another argument advanced is based on the alleged importance of harmonization at the international level. This was one of the considerations influencing the adoption of the Sonny Bono Copyright Extension Act in the US and was highlighted in the 2003 Allen Consulting Group's Report in Australia. A number of the papers submitted to the Gowers Review also mention harmonization with the US as a worthy aim. However there is some uncertainty as to the length of protection given to sound recordings in the US. Even those countries identified as having longer periods of protection than the UK have not adopted identical terms of protection.

4.3 Notably, none of these terms is as long as the claimed US term of 95 years. There is also a hidden "ratcheting" effect of harmonization which results from the fact that harmonization is almost invariably upwards.

4.4 Term is only one aspect of copyright protection. For example, the UK in common with many European states has introduced a right of communication to the public in respect of sound recordings, or 'public performing rights', whereas the US only recognizes public performing rights in relation to digital audio transmissions. The US also has a broad "fair use" defence to infringement, something that is more restricted among EU members. Term is only one factor among several affecting the revenue derived from recording copyright. Comparing again to the US, it would appear that EU recording copyright is both more restrictive than that in the US but the EU copyright owners benefit from 'public performing rights'.

4.4 Finally, copyright extension can cause 'locking up' content. Record companies can suppress reissue for a specific performance for many reasons the most common being they wish to promote another , more recent, artist. Such arguments tie into issues of freedom of expression. There has always been a derivative nature of human creativity and copyright can retard such development by restricting free access to works.

5.1 If the claims of performers that reform is needed so that they might continue to receive revenues (at least while they are alive), performers could be provided with inalienable rights to remuneration rather than assignable property rights.

6.1 Do nothing. Copyright and performers rights would expire after 50 years. This allows free access thereafter and prevents 'locking up'. Performers could arrange to have their works published on terms that suit themselves, but such publication could not be exclusive .

6.2 Provide performers with inalienable rights to remuneration beyond the existing term of copyright. This would allow performers to secure publishing where the former copyright owner is not willing to make the recording available.

6.3 Extend copyright in sound recordings. This will enable copyright owners ( usually the record company) to earn revenues exclusively for an extended period. It also enables them to carry out 'locking up' if they so wish and unless the performers have negotiated payments in their contract with the record company the performers would not benefit from revenue.