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Livin’ Doll still breathin’?: the copyright extension debate

March 2009 - Media, Entertainment & Sport. Legal Developments by Harbottle & Lewis LLP.

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The music industry received an unexpected Christmas present in December, when the Secretary of State for Culture, Media & Sport, Andy Burnham, announced a volte-face by the government in its position on extending the term of copyright for sound recordings. This is a signifi cant development in the debate on how long copyrights should last, an issue that is increasing in importance as more and more ‘modern’ copyright works reach the end of their term of protection.

Choosing a term of protection for copyright works is an inexact science but, in broad terms, the law seeks to achieve a balance between allowing the creators of the copyright work a suffi cient amount of time to benefi t from their work, but preventing them from controlling the terms of access to and use of the work indefi nitely. For most forms of copyright work (such as literature, art and the composition of music), EU law seeks to benefi t the creator for their own lifetime and that of their children, and so the copyright term is currently the creator’s life plus 70 years. This was extended from ‘life plus 50’ in 1995, in recognition of the fact that people are living longer.

Sound recordings have, however, always been treated diff erently and are only protected for 50 years from when they were released. As this date is fast approaching for many important recordings (such as The Beatles’ early work), the topic of extending their copyright protection has taken on an increasing urgency. The music industry has lobbied hard for an extension, arguing that it would be inequitable for the copyrights to expire while the creators are still alive.

Although there has been support for some time in certain EU member states for an extension to 95 years, the UK government has so far been opposed to an increase. In 2005 the government commissioned an independent review, led by former editor of the Financial Times Andrew Gowers, into the full range of intellectual property rights and asked it to investigate whether the laws were still fi t for purpose. The Gowers Report (published 6 December 2006) did consider the sound recordings protection term but, based on the various economic and creative grounds discussed below, rejected calls for an extension. The UK government appeared to agree. In February 2008 the European Commissioner for the Internal Market and Services, Charlie McCreevy, came out in favour of extending the term to 95 years. Although the UK government initially maintained its agreement with Gowers that no extension was required, it has since come under increasing pressure to agree to an extension, resulting in the Secretary of State’s December announcement.

The arguments

Unsurprisingly, those in favour of a copyright extension largely consist of record labels. Copyright in their artists’ sound recordings is a major asset: the longer the copyright protection, the longer they can earn royalties. Other arguments for an extension are more subtle. One is that extending copyright protection will encourage creativity; another is to ask what justifi cation there can be for an apparent hierarchy of worth that aff ords most types of copyright works protection for some 150 years (a life plus 70 years), yet sound recordings enjoy only 50 years’ protection.

Other supporters of the extension are the recording artists themselves, many of whom are purely performers and not songwriters. Sir Cliff Richard’s Living Doll was released in 1959 and any rights he has in it under the current law will expire at the end of this year. In contrast, the words and music were written by Lionel Bart, and these will remain in copyright until 70 years after Bart’s death (2069).

There is a loose collection of opponents to an extension, whose arguments are most clearly encapsulated in the Gowers Report and subsequent comments by Gowers. In their view, the argument that a longer term encourages greater creativity is impossible to prove, and the Gowers Report’s fi rm conclusion was that there was no evidence that the length of copyright had any bearing on recording artists’ motivation to be creative. Instead, opponents argue, innovation will be stifl ed, as a longer term of protection will encourage record labels and the buying public to continue with older, safer recordings, and not to seek out new music or give any impetus to currently uneconomic yet important recordings by lesser-known artists.

In seeking to reconcile these opposing views, the Secretary of State’s announcement relies heavily on a further argument in favour of an extension: that ‘there is a moral case for performers [to benefi t] from their work throughout their entire lifetime’ and not just the current period of 50 years. In part this may simply be an acknowledgement that life expectancy has increased since the 50-year limit was fi rst introduced. However, he also talks about ensuring that it is the performers – rather, he implies, than the record labels – who should benefi t from an extension, and he has asked the music industry to come up with a way to achieve this. Exactly what he has in mind, or whether the potential solutions will satisfy him, remains to be seen. It is not yet clear whether the Secretary of State is proposing a wholesale rebalancing of the relationship between artists and labels, which could be very diffi cult to achieve. To demonstrate what he is after, he gives the slightly odd example of empowering a vegan musician to prevent a burger chain from using their recording in an advertisement. This may simply be unworkable, because musicians will normally have given up such rights and these uses will be controlled by the record labels. Nevertheless, members of the recorded music industry (including labels, artists and managers) are seeking to negotiate a proposal to deal with this issue.

It is also noteworthy that the government’s proposal is something of a fudge, midway between the existing 50 years and the 95-year term that the European Commission has proposed. The EU’s proposal has the advantage of bringing the EU more closely in line with the position in the US, which is of considerable administrative and legal benefi t as distribution increasingly moves onto online platforms. However, as the UK is the largest producer of music recordings in the EU by some distance, the UK government’s position is likely to carry signifi cant weight in future debates and it looks quite likely that the result of all this will be a new EU-wide term of 70 years.

By Cordelia Payne, solicitor, Harbottle & Lewis LLP. E-mail: cordelia.payne@harbottle.com.