Monday, 12 September 2011

More copyright for sound recordings: Does the Directive pass the Stackridge Test?

Well, longer, anyway. The Council has accepted the record industry's special pleading, led by Sir Cliff Richard after whom the law is already unofficially being named, and adopted the long-mooted directive to harmonise copyright protection for sound recordings at a higher level than the 50 years provided for previously. They did not go up to 95 years as the lobbyists had wanted - harmonising the term with the US, which would have ignored the lack of protection in that country for performers's rights - and kept it to 70 years. The Press Release on the Council's decision is here and it links to the new directive.

Should we be welcoming this development, or ruing it? In many ways it depends on where you stand, although one thing that has to be said (as the IPKat pointed out the other day) is that this legislation fails to pass the Hargreaves test of evidence-based policy-making. It's good for record companies, of course, but they don't attract a huge amount of sympathy these days. It doesn't make any direct difference to songwriters, because their copyright already lasts for 70 years PMA - although it's possible that records will remain available for longer under the new law, so they might earn more for their musical and literary works. What about the performers?

I have posted on this subject before. When the topic first came up, it seemed to be driven by the record industry trying to get extra protection for some valuable properties. They got the performers to lobby for their cause, of course, because the public would be more sympathetic to them than to the industry - producing that memorable full-page ad in the papers with 2,000 signatures, including those of two deceased performers. In working out where I stood on the proposal, I adopted the Stackridge Test: would the benefit accrue to the musicians whose pension funds could do with a little topping up, or would the record companies clean up?

The answer I got (thanks to Mike Tobin, and through him Peter Purnell of Angel Air Records) was that the terms of recording contracts provided for the rights in the recordings to pass to the artists when the record company decided to remove the disc from the catalogue. So the musicians whose work I enjoyed back in the seventies get the right to arrange for new editions of their work, like the Stackridge back-catalogue on Angel Air. The extra term can benefit them, not invariably the record companies. And their pensions get a boost. On that basis, I decided that this was an OK law: not great, but certainly not altogether bad - perhaps a bad law with redeeming features.

What we have now is an increase in the duration of protection to seventy years from release, with a proviso that if the phonogram is not being offered to the public the performer can terminate his or her rights in the fixation of the performance - using the rights performers have in their performances as levers to take over the copyright in the sound recordings, thus neatly overcoming the problem that those rights can't simply revert to the artists because they never owned them in the first place. So the directive satisfies the Stackridge Test up to this point.

Where it looks to me as if it will fall down is that there is no need any longer for a phonogram (which includes a recording made available in immaterial form) ever to be deleted from the catalogue. The record companies can, if they are so minded, ensure that copies are always available to the public. The "reversionary" rights might never come into play, and while Stackridge won't lose what they already have musicians who haven't already gained control over the copyright in their sound recordings might find the new law has little to offer them.

Or am I wrong?

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