The public domain is not merely a graveyard of recordings that have lost all value in the market place”

The latest issue of European Intellectual Property Review has a solid piece by Natali Helberger, Nicole Dufft, Stef Van Gompel, and Bernt Hugenholtz and the push by the music industry for an extension in the term of copyright protection for sound recordings.

Those regular readers of this blog will know this is one of my hobby-horse topics.  The article, which takes the same view as I do on such things (so, yes it is preaching to the converted rather than the Industry, Sir Cliff, and Music Week) argues that there is no valid reason for increasing the current level of 50 years.

Indeed, the article even manages to remove the view I had previously held, as espoused by EU Commissioner, Charles McCreevy “I have not seen a convincing reason why a composer of music should benefit from a term of copyright which extends to the composer’s life and 70 years beyond, while the performer should only enjoy 50 years.” (although even here, I wanted to see both reduced).

According to the article, “unlike the exclusive rights that are granted to authors, i.e. the creators of literary, musical or dramatic works, the objectives for granting related rights to sound recording producers are exclusively of an economic nature, not of a social or moral nature.”

The right is there to provide incentives to produce new recordings by allowing those producing the sound recordings to recoup the investment needed to make the recording in the first place. Given that most sound recording recoup their investment within months or the first couple of years, and that if one hasn’t done in 50 years, then it is likely that it never will, the authors argue that it is hard to justify calls for extending the protection of this ‘temporary monopoly’.

A further good point made is that up to 95% of the music industry’s back-catalogue material remains in vaults gathering dust, as only a very small percentage of material is still generating commercial value after 50 years.

The authors conclude by commenting on the usual rally call - made by the likes of Sir Cliff Richard - that the protection needs to be extended to allow poor musicians to continue to receive sound production royalties for longer to keep them off the poverty line. As they have already established that most recordings have no commercial value after 50 years, the number of performers this would actually benefit is questionable. The authors have a better idea. “If the legislator would want to improve the situation for all performers, the more sensible and effective thing to do would be to scrutinise the contractual terms between performers and music publishers and phonogram producers rather than extend the term of protection of sound recordings for the benefit of only a few”.

A recommended read.

[2008] E.I.P.R  Issue 5 - Never Forever: Why Extending the Term of Protection for Sound Recordings is a Bad Idea.