The forces behind the drive to extend Europe's musical copyrights from 50 to 95 years (i.e., the record labels, Sir Cliff Richard, and at least a few actual, aging session musicians that the law is ostensibly designed to help) won a major victory late last week when the bill was passed out of the powerful Legal Affairs Committee (known as JURI) at the European Parliament. Lost in much discussion about the vote was the fact that the committee wondered aloud whether "a similar copyright extension would benefit the audiovisual world."

Actually, "wondered aloud" is putting it too weakly. The committee actually asked the European Commission, which started the current process on musical term extension, to produce an "impact report" by January 2010 on the subject. That report, if it follows the depressing pattern of the current proceeding (all but ignoring academics, even those that produced EU-commissioned work on this topic) might well find that aging, out-of-work actors with gimpy knees and bad lungs need another 45 years of protection to keep them out of the poorhouse. And, should that happen, the term extension push will ramp up once more, this time for movies and TV shows instead of music.

All that paranoid talk of perpetual copyrights and infinite term extensions? Well, there's a reason it gets started, and this is it. It's also a textbook example of how the drive for copyright "parity" only moves one way—toward longer terms.

No need for evidence

The current musical term extension push began in February 2008, when European Commissioner Charlie McCreevy of Ireland announced his support for a near doubling of the current term of protection. The rhetoric around the issue has centered on impoverished session musicians, who aren't getting money just when they need it the most. ("Saving for retirement" was apparently a precept never picked up over the last 50 years during which these musicians have been able to earn royalties on their work.)

A closer look at these claims shows just how odd they are. For instance, the whole issue was looked at quite carefully by the UK's Andrew Gowers during his hugely publicized report on intellectual property. Gowers concluded in 2006 that no such term extension was needed—at which point the labels simply shifted their focus away from national governments to the EU.

Charlie McCreevy

But Gowers was operating in a UK context; groups of continental academics have come to similar conclusions when looking at the data. One group, headed by Prof. P. Bernt Hugenholtz of the University of Amsterdam, found that a copyright term extension would be a bad idea with costs for consumers, competitors, and society as a whole. Despite being commissioned, paid for, and published by the European Commission, Hugenholtz's work wasn't even mentioned when McCreevy made his proposal (though music industry work was considered).

This led Hugenholtz to blast off an angry letter about a process which "seems to reveal an intention to mislead the council and the Parliament, as well as the citizens of the European Union. In doing so the Commission reinforces the suspicion, already widely held by the public at large, that its policies are less the product of a rational decision-making process than of lobbying by stakeholders."

Another group of academics fired off an open letter to the Times of London in which they complained that the new plan would only pad the pockets of "record companies, aging rock stars or, increasingly, artists' estates. It does nothing for innovation and creativity."

But forget Gowers and European academics—what claim do those pushing the idea of term extension make? The official legislative dossier tells us: "Once their performance fixed in a phonogram is no longer protected, around 7,000 performers in any of the big Member States and a correspondingly smaller number in the smaller Member States will lose all of their income that derives from contractual royalties and statutory remuneration claims from broadcasting and public communication of their performances in bars and discotheques."

A tremendous loss to the German public domain is therefore enacted in order to help, for example, just 7,000 performers in all of Germany. And how much will these musicians make? According to Commissioner McCreevy, an average of just ?2,000 a year.

But, according to the UK-based Open Rights Group, this isn't about session musicians anyway. Writing in the Telegraph last week, the group's new executive director said, "That argument is hard to swallow. Firstly, two-thirds of the money that a recording generates is made in the first six years after publication. We might conclude that if artists want to survive in their later years, record companies should ensure they invest in a pension, not depend of the vague hope of earnings from ancient recordings.

"Secondly, an analysis of the figures shows where the money really ends up. About 80 per cent will go to recording companies. Of the rest, nearly all would go to big stars, and a very small percentage to the small artists the Directive claims to be all about."

Another UK academic at the University of Bournemouth says that a slightly lower 70 percent of all new revenues will go to the record labels, not the performers; in any event, most of the money goes to labels that have already had five decades to profit from the songs in question.

Let's compromise at 70?

Brian Crowley

The term extension still needs to pass Parliament, but that looks likely with JURI's recommendation (where the bill was overseen by another Irishman, Brian Crowley, who is in the same party as McCreevy). The measure may face more opposition when the Council of Ministers considers it, though. The UK government has already said publicly that it does not support an extension to 95 years, but it would be open to a 70-year term.

The end result of the entire process might well be a compromise that sees the term extension "reduced," giving the labels and performers another two decades of copyright protection. And in 2028, when the copyright on 1958's music would finally start to expire? The EU could always push for another extension.

At least a 70-year term has some basis in reality; it's designed to make sure that performers can profit from their work for their entire lives. With increasing life spans, a 50-year term won't cover many musicians for their entire lives.

The current 95-year plan uses the same rationalization to a less convincing effect. It is designed to "improve the social situation of performers, and in particular sessions musicians, taking into account that performers are increasingly outliving the existing 50 year period of protection for their performances." Though, even if musicians popped out of the womb and landed in a recording studio, very few would need 95 years of coverage.

Beautiful harmonies

Whatever happens, it's clear that the situation would create an inequity of the kind that copyright maximalists love to exploit. If music gets 70 years of coverage, how could it possibly be fair to grant only 50 years of protection to audiovisual works? Better consider extending those, too—an argument that some in the European Parliament are now making explicitly.

And what if you consider authors? In the EU, authors get protection for their entire lives plus 70 years after death. It doesn't really make much sense to grant that sort of protection only to authors, so of course there will be a push to give music and then audiovisual works similar terms of protection. In fact, with the current proceeding, that process is well under way.

The European Commission's Internal Market section (headed by Commissioner McCreevy) says explicitly that this is the goal. "The Commission adopted a proposal to extend the term of protection for performers and sound recordings to 95 years," it notes on its website. "The aim of the proposal is to bring performers' protection more in line with that already given to authors—70 years after their death."

This sort of "harmonization" of copyrights always moves in one direction—toward longer protection terms—and when there's nothing to harmonize at home, one can always suggest that one's creative classes are getting a raw deal because some foreign government offers its creators a longer term.

The proposal passed by JURI does contain a couple of important limitations. It has a "use it or lose it" clause under which the original performers would get copyright control over their music if labels choose not to market it. Labels also must pay 20 percent of the new revenue they earn (not their total revenue) into a fund that will be distributed to session musicians.

Still, given the limited impact even the bill's most optimistic supporters say it will have on a few thousand musicians per country, an extra 45 years of copyright protection seems an enormous price to pay.