What Could Have Entered the Public Domain on January 1, 2016?

What Could Have Entered the Public Domain on January 1, 2016?  asks the Electronic Frontier Foundation, in a piece designed to highlight the harmful effects of the extension of U.S. copyright protection from 56 years to life-plus-70 which happened as recently as 1978, the year in which I passed my Law Society Part II exams (well, most of them in the August of that year, after one attempt which was a complete failure in the February). That was when the 1976 Act came into operation, finally bringing the U.S. into the Berne Convention family.

My eye was caught by the reference to one of my favourite records,  Kind of Blue, recorded in 1959, so copyright would have expired this year if the old rules had still applied. Extending the copyright term is always contentious, and it seems to be accepted that it has to be back-dated so that existing works get the benefit of the longer protection, notwithstanding that the generally-accepted justification for copyright (that it encourages copyright owners to create more) is hardly served by increasing protection for things that have already been created, indicating that there was already sufficient incentive at the time; and in some cases the author, being dead, is in no position to respond to a new incentive anyway.

The EFF article doesn't make it absolutely clear whether it refers to copyright in the music or the phonogram. It seems to be more about the music, but copyright in the recording is also important, certainly in our copyright law - and, intriguingly, there's a very close relationship between the two, because Kind of Blue is a sustained piece of improvisation, so the sound recording in a sense is the musical work.

Here, the Copyright Act 1956 would have given the recording protection for 50 years from release, so it would have expired at the end of 2009. The music, notwithstanding its improvisatory nature, would have been protected for the life of the composer plus fifty years, a much longer term already than that provided for in U.S. copyright law. According to the sleeve notes, all the pieces on the album were written by Miles Davis, except two attributed to Miles (died 1991) and Bill Evans (died 1980), so even before the idiotic extension of copyright protection in the mid-90s copyright in the music would have run until 2041 and will now run for 20 years longer. The EFF's point, that if you wanted to use a Davis piece in a film you'd have been free to do it in the U.S. had it not been for the 1976 Act, never had legs in the U.K. (But if you want to use it that way, what's wrong in principle with paying for it?)

As for copyright in the phonogram, that would have expired 50 years after the end of the year of release - 2009. That's just a little too early to have been caught up in the ludicrous Cliff's Law extension of copyright in sound recordings, and clearly too late to give Miles any incentive to get his trumpet out again.

None of this, however, has stopped it from being available on YouTube.

Green Party sustains gunshot wound to foot over copyright, of all things

Who would have imagined that the biggest policy gaffe of the election would be over the duration of copyright? Well, go back a few years and it could have been "New" Labour swallowing the "Cliff's Law" argument hook, line and sinker, but actually this goes completely the other way. The Green Party, which had already ensured that it would not be getting my vote* by accepting the endorsement of the dreadful Russell Brand, announced that if elected ("if" being a very important word here, as the Greens had a single MP, their first, in the last Parliament) they would take us back to 1709 or 1710 (it always depends on whose calendar you use) and reduce copyright to 14 years. From creation or publication, it was not entirely clear, but certainly not PMA which might have been a bit more comprehensible.
It transpires - allegedly - that 14 years came from a Cambridge University postgrad student. Isn't that how the Iraq war started, too? To be fair to the Green Party (and of all the political parties they are the only one to which one should have any reason to be fair) this is mentioned in the same breath as their "Citizen's Income" idea, although the two policies seem to be associated because the latter would ensure people had time to devote to cultural activities which would (they imply) somehow justify reducing the term of copyright protection (the total volume of copyright, works multiplied by years protected, would remain much the same, on my reading of the policy). Had they said that because everyone will have the Citizen's Income there will be less need for people to earn money from copyright, it might have made a little sense: but as it is there is no logic underlying it at all, except for Mr (or presumably Dr now, as his work seems to date back to 2007) Pollock's thesis.
I have found myself participating in a couple of discussions on Facebook about this crazy idea, and it is clear that the Greens have upset a lot of creative people who might otherwise be more-than-averagely likely to favour them. And in addition to the damage they have done to their own support, how do they imagine it could be achieved? 14 years would not comply with the Berne Convention, so the UK would have to denounce (I think that's the right verb) that, and other international instruments. TRIPS probably isn't the Greens' favourite international agreement anyway, and certainly it has plenty of questionable things about it, but this is surely not the issue on which to challenge it. What about the directive? Copyright duration would be an odd reason for a Brexit. Then there would be inevitable claims under the European Convention on Human Rights, that copyright owners had suffered the loss of property. At least Cliff's Law would be a thing of the past.
There is plenty wrong with copyright, but anyone proposing to reform it would do best to consider its breadth rather than its depth. It is the omniverous nature of copyright, the indiscriminate way in which it confers protection on works with minimal originality, permitting big businesses to bully small users and reap super-normal profits, that should be addressed, and to my mind the way to do that is to reconsider the originality requirement (along with the notion of what constitutes a copy of an earlier work, in the case of sound recordings and films: given that "original" means, basically, "not copied", this amounts to the same thing). But I don't think that presses the right buttons in a general election.
The Greens also propose to legalise peer-to-peer filesharing where it is not commercial, and to "liberalise" the rules about fair use (which of course are absent from our copyright law entirely at present - "fair dealing" being rather different, a distinction which seems to have escaped the Greens). They claim they want it to apply outside academia, which - correct me if I am wrong - I thought was one of the places where fair dealing didn't run very far anyway. Still, we needn't worry too much: few people will vote Green just because of these policies, and they aren't within sight of even holding the balance of power in Parliament (are they?).

*I plan to support whoever is most opposed to the desecration of the North Wessex Downs AONB by massive housing developments, as per the draft Local Plan which the Conservative Group on our District Council voted through without demur. Unless that's the Greens, who won't get my support because of this copyright gaffe and the Brand thing. My local MP also alienated me by "cutting" me at the All Party Writers' Group winter party in December, and lost any possibility of getting my vote. Just so you know.

Martin Kretschmer on copyright term extension

An excellent comment on the cost of extending the duration of record companies' rights.

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?