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Big Music trumpets ‘Cliff Richard’ term extension

EU seals copyright deal - with strings attached

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There’s quiet satisfaction across large parts of the music industry as Europe formally extends the copyright term on sound recordings from 50 to 70 years. The music business fought off a rearguard action from Pirate Party MEP Christian Engstrom – whose raging against the corruption of the European Parliament may have eased the passage of the controversial measure. Not everyone loves a Pirate.

Ministers at a meeting today formally approved the term directive, and as a consequence member states will have two years to implement the measure.

While term extension undoubtedly benefits performers and brings immediate relief to large record companies - Elvis and the first Beatles recordings remain with their present owners - it may be a major missed opportunity to revive markets for old music and empower today’s artists. For it’s not, despite the heated rhetoric from both sides, the term of copyright that really matters – it’s how vibrant the rights markets are around it. And term extension may hinder the growth of those markets.

But before we examine that, let’s look at what actually happened – and see exactly what has been passed.

There are three copyrights on a sound recording: the composition, which is seventy years plus life and goes to the author; a mechanical royalty that also goes to the composer; and the recording or ‘master’ right. The owner of the right may be the artist, but typically the right is granted by the artist, by contract, to a record label which invested in the recording. Performance royalties from the recording are split 50:50 between the owner and the performers on that recording. So the EU is quite accurate when it says term extension “benefits performers”.

In April 2009, the European Parliament passed a term extension of the copyright of sound recordings from 50 to 70 years after the first performance (or recording) of a piece of music. It is this extension which now moves forward.

A few strings were attached.

Independent labels and performers, including Billy Bragg for example, had argued strongly for ‘reversion’ – giving the artist back their copyright after a period if the record label was not interested in marketing it. The artist could then have found a new label or attempted to market the recording themselves. This would have kept the recording from festering in the vaults, and many independent labels do a good job of bringing old recordings to market, often with wonderful packaging and curation: not something the internet is noted for. The most famous of them all of these is Rhino Records, technically part of Warner (a major player) for some years. Indie examples include Demon, Soul Jazz and Cherry Red’s El imprint, and many more.

In acknowledgement of this, a ‘use it or lose it’ clause was inserted into the directive. But instead of the 25 years some groups had asked for, it was set at 50 years. Are many performers who first recorded or released their work in 1961 still interested in taking control of their work? Some, perhaps, but most are retired.

As a sop, session musicians got a fund from 20 per cent of the revenues gained from the term extension, which will be administered by the collection societies. You can read the official summary here.

What the extension doesn’t mean is that sound automatically enters the public domain. Remember the composer’s copyright is unchanged, so without the composer’s permission, such a recording is really a ‘bootleg’.

It’s a pity that the argument became polarized between “Cliff Richard” and a generic anti-copyright rant about copyright terms in general. A great opportunity to give the artists more power and stimulate the market for old recordings - with a 25-year reversion clause - has instead been missed. ®

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