A key EU committee has voted to approve a directive that would retrospectively extend copyright from 50 to 70 years for recordings after a serious amount of lobbying from the entertainment industry and high profile ageing rockers like Cliff Richard and Paul McCartney. However, for all the claims of 50 years not being long enough to fully exploit a song – there is no evidence that extending copyright produces greater creativity.
This directive, known as the Cliff Richard Law, still needs to be passed by the EU Council of Ministers before it gets implemented in member states, but it has put the UK’s coalition government in an interesting position. They approved the findings of the Hargreaves Review on copyright, which in a very balanced analysis advocated tidying up and simplifying the current copyright system, making greater effort to enforce it, and importantly here – that its reach should not be extended. So if the Council of Ministers approves the directive, David Cameron et al will have to decide whether to follow their own analysis that gained cross-party support, or follow the EU directive – something they are obliged to do as an EU member state.
Supporters of the bill are at pains to make out that this extension of copyright is more to give the “struggling session musicians” a pension than to prop up wealthy rock dinosaurs, but they are being either ignorant or disingenuous. A major proportion of the monies earned through this extension won’t go to musicians at all, but instead major record labels that want to continue scraping their bottom line without having to invest in new artists – only a very tiny proportion will be going to session musicians whether they are struggling or not.
Copyright is a bargain between creatives (and the creative industries) and the state over how long the state will prevent others from copying a work in order to give those creatives sufficient reward to entice them to create future works. Back in the 1960s when those ageing rockers were actually recording new material they made this bargain with the state and it was for 50 years under the Copyright Act 1956 s.2 (3), and that was sufficient to entice them to record their music and for record labels to release it – copyright’s raison d’être was demonstrated as the world exploded with new music.
To retroactively extend copyright on these works is giving the labels and musicians who recorded them a bonus to the detriment of the public – they are in essence renegotiating a contract with the public and not giving the public anything in return. Once a work is public domain it can be remixed, mashed-up, pull and twisted into anything imaginable to create new works that the public can appreciate, this extension of copyright takes that right away from the public for a further 20 years.
I don’t support extending copyright in general as I don’t believe it will produce more or better works than are currently made – but such a change could and maybe should be debated. Retroactively extending copyright, however, is taking something which would serve to benefit the public, and instead allowing it to be used by a small clique of ageing rockstars and major labels to line their pockets. It’s the opposite of Robin Hood.
For the sake of clarity I should have added that the proposed copyright extension will be “partially retroactive” in that works already in the public domain will not move back to being under copyright, but works still in copyright will be extended. For example if this directive is passed this year, the copyright of all works created in 1963 would be extended for 20 years (until 2033), but those made in 1960 would not fall back under copyright. The differences are discussed more thoroughly on p.56 of this EU proposal’s impact assessment [PDF].
As this is still causing such confusion across the web and mainstream media, I reached out to Taylor Wessing, the media and technology legal specialists, who explained that the extension applies to works only if the initial term has not expired before this Directive comes into force – ie. partially retroactive as explained above.
— Taylor Wessing LLP (@TWMediaTech) September 12, 2011
[Further reading on Europa.eu]