Copyright is an automatic right and arises whenever an individual or company creates a work. To qualify, a work should be regarded as original, and exhibit a degree of labour, skill or judgement. The appropriate period of protection in copyright works has been in a defenceless situation as the duration is not perpetual. The length of protection has increased rather than decreased. The period of work also changes depending on the type of work in question. This issue has general effects and lies at the heart of the copyright system of Europe due to the considerable influence it has over the fate of copyright holders and the public domain. A detailed discussion will be made to identify the benefits and disadvantages of the development of the law in this direction and the issue of how far as the current UK law strikes a balance between the interests of right-holders and public interest in this area of law. In analyzing the UK law, a comparison is required of the community law and the proposed directive and whether implementing this directive to the copyright law will help harmonizing the law on a community level.
Different issues and policy issues arise with different categories of work. Copyright protection is provided for a range of works under the Copyrights, Designs and Patents Act 1998, which governs the law of the UK in this area and an ostensible classification of the works is visible from the structure of the Act. Firstly, for the purpose of clarity and coherence the advantages and disadvantages of lengthy terms of protection as a whole will be examined. The current copyright law will be briefly outlined to clearly demonstrate the advantages and disadvantages. Copyright law originated in the United Kingdom from a concept of common law, the Statute of Anne 1709. It became statutory with the passing of the Copyright Act 1911. The current act is the Copyright, Designs and Patents Act 1988. The UK copyright law fact sheet outlines the Copyright, Designs and Patents Act 1988, the principal legislation covering intellectual property rights in the United Kingdom and the work to which it applies. Thus, Section 1 (1) CDPA defines the works in which the copyright can subsist. The first category consists of Literary, Dramatic, Musical and Artistic works and all these works need a degree of originality in order to successfully be afforded copyright protection. The second category involves sound recordings, films or broadcasts and these are generally based on the LDMA works and it is also known as “derivative” works. The third category concerns Typographical arrangements of Published Editions which are explained under Section 8 of the Act. The law gives the creators of literary, dramatic, musical, artistic works, sound recordings, broadcasts, films and typographical arrangement of published editions, rights to control the ways in which their material may be used. Term of protection or duration of copyright varies depending on the type of copyright work. For copyright works originating outside the UK or another country of the European Economic Area (EEA), the term of protection may also be shorter if it is shorter in the country of origin. There may also be variations in the term where a work was created before 1 January 1996. The term of protection for all this work increased.
Initially, under Statute of Anne in 1709 literary works were protected for 14 years. In 1942, Literary Copyright Act extended the term of copyright in books to 42 years or the authors life plus 7 years. However, in 1991, it was extended to life plus a 50 year term. As a result of the EU Duration Directive, the term of protection increased to the life of the author plus 70 years. Hence, the Berne convention 1886 was formulated for uniformity of Copyright law and full protection in all member states. This was followed by the Berlin Revision 1908 which increased the protection for authors for life plus 50 years and introduced sound recordings as copyright cover. In the CDPA 1998, there was a further increase in the term of protection for “original works” and films to life plus 70 years by the 1995 Regulations and is the currently the valid term for such rights. Similarly, the protection afforded for sound recording is 50 years from the end of the calendar year that they were made. At this point it can be seen that it is impossible for the term of copyright protection to benefit all the institution as there is association between the copyright owners and the public and this makes it difficult to satisfy the requirements.
Furthermore, the lengthy term of protection for copyright is widely accepted by the copyright holders and the public as long as it does not last for a very long period as the main arguments against the copyright protection is related to the duration of its validity. Hence, advantages of copyright protection are that it allows the copyright holders to protect their original material and stops the public from using their work without their permission. The existence of copyright may be enough on its own to stop others from trying to exploit the owner’s material. The long term protection therefore makes the owner eligible to sell the copyright but retain the moral rights, license their copyright for use by others but retain the ownership and to object if their work is distorted or mutilated. The UK had said that it does not believe an extension to 95 years is justified, but that it would consider an extension to cover the lifetime of the performer, such as 70 years, providing there were permanent benefits to performers.
The basic idea of intellectual property rights was instituted to induce authors and artists to keep producing material to benefit society as a whole. The advantage of this was that the author had exclusive rights to his creation for a certain period of time so only he could distribute his work and profit from it. Another advantage to this is authors were more inclined to produce more works if they got exclusive compensation from them, so the public benefited by having more material available.
After the expiry of the copyright, the work reverted to the public domain and anyone could use it as they pleased. This expiry was supposed to induce the creators to make more, new works instead of relying on what they had already produced. Unfortunately, today, these concepts have been somewhat eroded in favour of the larger entertainment conglomerates, copyrights have been extended for overly long periods which doesn’t induce creators to produce new material, but rather allows them to subsist on the old and up to now the copyright laws have not evolved to meet new technologies.
As to disadvantages, as it stands today, the public is not receiving much in the way of expired copyrighted material to add to the public domain. And the copyrights are overly restrictive in many aspects. And if the current trends are allowed to continue, it has been predicted that the entertainment industry may be in serious trouble. The public can be fooled for only so long before there is a reaction.
However, failure to mention the non-economic justifications for and against copyright extension would leave an unacceptable lacuna. A brief overview of these is therefore provided here. The first sets of arguments to consider are those under the heading of ‘natural rights’. These 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) 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.
Another argument advanced is based on the alleged importance of harmonization at the international level. A number of the papers submitted to the Gowers Review also mention harmonization with the US as a worthy aim. In our view, claims as to the importance of harmonization should be treated with some caution. Firstly, there is some uncertainty as to the length of protection given to sound recordings in the UK. Finally, it is also important to note that term is only one aspect of copyright protection. For example, the UK 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, while in the UK the defences are confined to specific categories of use. Thus, UK copyright may be shorter in length than US copyright, but it is arguably larger in ‘breadth’.
Finally, an argument commonly raised against copyright extension points to the role that copyright can play in ‘locking up’ content. Such claims point to the evidence of authors’ descendants who act to suppress uses of works of which they disapprove. Such arguments tie into issues of freedom of expression, although the latter are generally less relevant in the context of sound recordings. A similar complaint regarding long copyright terms points to the derivative nature of human creativity and development and argues that copyright can retard such development by restricting free access to works.
The Gowers Review of Intellectual property requested by the Chancellor of the Exchequer was published on 6th December 2006 which attracted great public attention. The recommendation stated that the protection period for sound recording and performers rights in UK copyright law should remain unchanged. The Gowers Review listed that it is an unfair and discriminating disparity between the copyright protection period composers enjoy for their musical copyright and the protection for sound recording and performer’s right. Hence, in relation to United States where the protection is now 95 years which entails economic competitive disadvantage of the UK record industry. The advantage for the lengthy term of copyright for record producer and performers is that it promotes musical creativity and protects the British music heritage, in particular it increases incentives to invest in new music, generates jobs and growth and a greater number of works would be available to the public as it gives right holders an incentive to keep the work commercially available.
However, the counter argument for this would be that there is a qualitative difference between the economic and cultures in United Kingdom and the United States. The copyright protection of musical works does not necessarily promote creativity and the production of new music, copyright production of sound recording does not at all advance the creation of new music. Different types of work are protected differently. An establish justification for copyright protection of music is to give the composer an ability to obtain remuneration for past compositions to enable them to continue working creatively despite the constant risk of an uncertain and unpredictable stream of income in the future. Furthermore, the creativity input of a composer compared to a performer is much higher and that deserves a longer protection period. The creativity input is particularly limited in the case of sound recording, and the actual rationale for this entrepreneurial copyright is the producers’ protection against an anti-competitive parasitic free ride.
It is also quiet common that everything the US has, such as the term of protection of 95 years must be good and is therefore to be emulated by Britain, irrespective of the often quite different economic and cultural situation in the UK. However, the extension of the US copyright term by the Sony Bono copyright Term Extension Act in 1998 was and still a highly controversial in the US and even led to challenge of that Act as being unconstitutional before the US Supreme court, which was however unsuccessful.
One of the arguments in favour of an extended copyright term for sound recording is that such protection promotes the creation of new music through subsidies financed by sales of successful recordings from the back catalogue. Furthermore, copyright apparently protects the musical heritage by creating a commercial incentive to keep old recordings of music available which also improves customer’s choice. This is a misunderstanding as sound recordings do no promote music at all because music is a living art which only comes into existence through its performance.
The Gower’s comment is worth following up as and while the music industry has already indicated that it will continue its battle, one may start thinking in more detail about a long term project of gradual reduction of copyright term, at least for sound recordings although that would need political consensus on an international level for the implementation of such changes.
The European Commission’s Proposal
The proposal submitted by the Commission on July 16 for an amendment of Directive 2006/1161 is aimed at improving the social situation of performance, in particular the musicians. The core of the proposal is to extend the current term of protection of performing artists from 50 years to 95 years. However, the measures proposed by the Commission mainly a prolongation of the term of performance rights from 50 to 95 years only brings marginal benefits to the performing artists. In fact the Commission also rightly recognises that the problem of performing artists lies primarily in their lack of bargaining power as against the sound recording producers. The beneficiaries of performance rights would best be served if more effective use was made of the existing protection during the current 50 year term. On the part of sound recording industry, an almost ‘perpetual’ protection must not be allowed to distract from the necessity of using competition based business models to recover the necessary investments and achieve a reasonable profit within realistic periods of time. The proposed prolongation of the term of protection leaves all the shortcomings of the present system untouched. Hence, from the point of view of the economist the proposal encountered unanimous and decisive rejection. It is impossible for an extension for a term of extension of protection to achieve the effects assumed by the consumer and not to benefit the performing artists. The extended period was said to have negative effects on the third party interests and taking into all the circumstances cannot be justified.
In justification of the main intention, the prolongation of the term of protection, it is argued that performing artists are increasingly outliving the existing 50 years period of protection. Many of them would lose all their income that derives from contractual royalties and statutory remuneration claims from broadcasting and the public communication of the performance in bars and discotheques.
The social situation of performers
It is not disputed that the commission is right to distinguish between the income of superstars and less well known performers. The unfortunate performers will not benefit from a prolongation of the protection period. Their earnings are inadequate even during the present exploitation period of 5 years and nothing will change if it extended by further 45 years. To this extent many thought that consideration by the Commission has an unrealistic impact. If artists are successful, than 5 years are more than sufficient to compensate them from their efforts without them being reliant on a further 45 years. Even the successful performer will benefit far more from balanced agreements over 5 year period than from imbalanced agreements for 95 years. Hence, it is legitimate to ask whether a certain harmonisation would be desirable at contractual level.
The Commission’s calculations with respect to the social situation of performers do not make it clear why the protection period should be increased from 50 to 95 years. The aim of covering the present average age expectancy of performing artists by means of the protection period, according to the information of the Commission, assuming the protection period is 20, would lead to a protection period for men of 55yeras and 62 years for women. The commission’s concern that there is a risk that performers could suffer from uses which are harmful to their name or reputation. In the European Union Member State there are regulations to protect performers’ general personality right and is not intended to secure anything more.
The economic challenges
Nevertheless, to see the disadvantage and advantage, a simple explanation will be given on why the CD market collapsed last few years and it is due to phenomenon of pirate copy. There were new opportunities for the public to copy the work. The resulting new opportunities however, ignored by the new industry until third parties filled the gap in order to satisfy the growing demand for music to be present. In the light of the existing copyright protection, such a move was indeed lawful. However, the long term protection has no connection with illegal downloads as, if no serious measures have been taken then such illegality will continue for further 45 years. In any event, a prolongation of the protection would first of all have no negative impact on the obvious lack of success of the recording industry market.
** It is not a given fact of nature that the producers of records or performing artists should enjoy a special legal protection for their activities on the contrary that is an exceptional to the fundamental freedom of competition , an exception that requires justification. There is indeed a justification for that without special protection the market would risk falling since complete freedom allowing third parties to copy sound recording might prevent the suppliers from covering the costs of their investments, with consequence that possible and desirable investments would not be made. However, to grant protection beyond the necessary minimum would mean unnecessarily impeding the necessary competition between these suppliers, who whom none are active creatively themselves, hence do not themselves produce anything new but must share in the existing stock of works created by third parties. Accordingly, there can be no automatic mechanism for an extension of the protection.
At the end of the discussion on impact assessment, the Commission provides concrete figures concerning the expended additional income resulting from the additional 45 years term of protection. This is the core of the matter on the issue for this reason. It is astonishing that these figures are only mentioned here and this is only because the Commission wishes at this point to justify why the proposed fund to which 20 per cent of income from the prolonged term of protection is to be paid, will not only be excessive burden on the music industry. It has apparently no idea of the effects that the prolongation of the term of protection would ultimately have on the income side of the sound recording industry. The Commission is satisfied estimates and apparently considers itself that there is a very high risk that the estimates are incorrect. It should also be noted that the Commission’s proposal with respect to the economic impact assessment lacks the necessary reliability.
In conclusion, the above analysis of the Commission shows that the prolongation of the term of protection cannot be justified from any point of view. It can only marginally, if at all, benefit the performing artist who the proposal claims to protect, they would not survive to benefit from the largest share resulting from the prolongation of the term.
In the economic situation of the performer to improve, the decisive factor for the performer are measures that would take effect immediately following the provisions of the performers. A prolongation term of protection would profit the sound recording industry, above all of the copyright protection of the works used has expired and the recording are more than 50 years old. The aspect of the necessary return on the investments made at the time does not constitute a justification for this.
On a subordinate level, the sound recording industry could benefit from the longer period based on the collective administration of rights, depending on the legal situation also in terms of the share of the protection artists, in particular after their death. However, taking into account the additional costs to the economy, there is no justification for this. The Commission’s proposal shows that there is an absolute lack of clarity with respect to the additional to the income expected
The fact that a number of productions are no longer profitable is no justification in itself for a prolongation of the term protection. In particular, the prolongation cannot be justified discriminately on the grounds of necessary cross-subsidies, the promotion of the culture. It is for the sound recording industry to prove that the 50 years period is not sufficient for this purpose.
The comparison with the legal situation in US that is always raised in this connection is misleading and wrong. European and American right holders enjoy the same protection in the territory in question, related rights does not exist in the US and copyright protection is depending on calculation hardly longer than in Europe.
The relationship addressed by the Commission in its proposal is complex. The Commission cannot be expected to have exhaustive legal or factual expert knowledge in this field. However, this is no justification for the blind implementation of specific commercial interest without consulting independent experts.
The constant and superfluous increase in the duration of copyright protection seemingly undermines the importance of the public domain aspect. This is because the public domain provides information, literature and other creative works with great cultural and historical significance. Furthermore, the significance of the public domain is multi-faceted because it benefits education, business, government, libraries and the general public. If the reasoning of the formulation of the Statute of Anne is considered in the current context, which was based upon the promotion of learning and progress of the public, then this consistent increase of the term of protection is undermining and disregarding the very ideologies and conceptions for which the copyright system was introduced.
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