Friday, 18 January 2013

Extending the term of copyright protection

For sound recordings, that is. Directive 2011/77/EU requires us (and the other Member States of course) to extend the length of copyright term in sound recordings and performers' rights in sound recordings from 50 to 70 years. It also makes specific provision for performers and provides for harmonisation of the copyright term for co-written musical compositions with words.

The government, through the agency of the Patent Office, has issued a consultation document seeking the views of "stakeholders" on how this should be achieved - although at one level there is no surprise about it: there will be a statutory instrument under section 2(2) of the European Communities Act 1972 and the Enterprise and Regulatory Reform Act 2013. The precise wording is what the consultation is about.

The draft SI proposes to make some changes (of course) and insert some new sections - sections 191HA and 191HB, which always makes me feel uneasy. There must come a time when inserted sections like this attain critical mass and a new statute is passed - mustn't there? I suppose not, because we must have passed that point long ago. Perhaps a response to the consultation making the point that a consolidating and amending statute would be more to the point, but there's a fat chance of ever getting that, at least not for the foreseeable future.

There is also a new section 10A, which deals with works of co-authorship, which are not to be confused with works of joint authorship. The latter are collaborations in which the different contributions cannot be separated: the former, the new creation of the Directive, are songs, or other works comprising words and music. The composer and the lyricist or librettist are constituted co-authors, and are treated for copyright duration purposes in the same way as joint authors. Often, songs are co-authored by two or more people: although Lennon and McCartney put their joint names to the songs they wrote one or other would be the principal author, so that's not the best example, and I don't know how that other classic partnership Jagger/Richards works - but take a classic example of how copyright can become confused (and a composer whom I once met, as it happens), West Side Story. Leaving Shakespeare out of it, the co-authors are pretty clearly Leonard Bernstein and Stephen Sondheim, although there are enough other people involved to make it too difficult for the BBC to clear the rights for a performance at last year's Proms (a matter which I wrote about at the time). So I think the outcome of the amendment to the law will be that copyright in, say, America will last for 70 years after Sondheim dies, doing Lennie's estate a considerable favour for, it has to be said, no clear and compelling reason.

As for copyright in sound recordings, the new law will - much as the 1995 extension of copyright term worked - give the additional period of protection to sound recordings that are protected when it comes into force (should I be using a subjunctive there somewhere?). At present, a sound recording is protected for 50 years from when it is made or from first release if that takes place during that 50 years. Record companies are not in the habit of investing in having sound recordings made and then sitting on them for that long, so one might think (and I believe I have told people attending training courses this) that the second part of that rule is hardly ever going to come into play.

Well, that used to be true (I think) - but it isn't now. What if someone - a great singer-songwriter, perhaps - made recordings early in his career that remain unreleased as he approaches, say, his 72nd birthday (and the recordings attain the magical age of 50, and he also approaches the milestone of 2,500 shows in the so-called Never Ending Tour which started in 1988)? Well, what would happen is that someone at Sony would realise that those old recordings had better be released while they can still benefit from the second part of rule about duration of protection: and the result would be a limited edition, 4CD set, ostensibly marketed as The 50th Anniversary Collection but widely known as The Copyright Extension Collection. The story is on the Rolling Stone website, and lots of other places.

There are probably few other artists whose 50-year-old outtakes are quite so valuable. Most of the stuff on the new set has circulated in bootleg form for decades, but I guess that for a small outlay which is probably covered many times over from sales revenue Sony secure the copyright in these recordings which otherwise would soon have been appearing all over the place. In so doing, they have created a collector's item which is already selling on eBay for well over $1,000 a copy (it was not, naturally, released in the US, only in the EU).

What I don't know is whether Dylan will see much benefit from the latest release, and my greatest reservation about the extension of copyright in sound recordings is that it will not benefit many of the musicians who might need it. The money is likely to go to the record companies. But a lot of musicians will have taken ownership of the copyright when their record companies deleted the LPs from the catalogue, which is how companies like Angel Air thrive. So copyright extension might not be too much of a bad thing - although it seems that Norway doesn't like it, as this article in Aftenposten makes clear, for the well-rehearsed reason that it will tie up cultural material without encouraging the creation of anything new. I suppose that at least that argument does not apply to Dylan - he is still creating, although he is also accused of plagiarism from time to time - but he doesn't actually seem to need the encouragement.

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