The European Parliament late last week agreed to extend musical copyrights from their current 50-year term to 70 years. So all that early rock 'n roll about to pass into the public domain? Don't count on using it in your documentary for another two decades—and there's nothing to say that the term won't be extended again.

While the vote is a big victory for the music labels who can continue to market major artists like The Beatles (let's face it, the obscure stuff from the 1950s isn't selling in measurable quantities anymore, and it's not playing on the radio), the movie industry looks set to cash in soon, too. In passing the term extension, Parliament also asked the European Commission "to launch an impact assessment of the situation in the European audiovisual sector by January 2010, with a view to deciding whether a similar copyright extension would benefit the audiovisual world."

Compromise?

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 term of protection from 50 to 95 years. The move was opposed by countries like the UK, which would only go along with a maximum term of 70 years, so the European Parliament eventually agreed to go with the lower number.

While dropping 25 years from the proposal has a whiff of "compromise" about it, it's never been clear why any sort of term extension should be passed. 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 recently, the group's 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 percent 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. Under the new law, artists could regain their rights to songs that are no longer offered for sale to the public, but in the era of digital distribution, why wouldn't a label just throw its whole back catalog up on iTunes?

Sweet harmonies



The extension still needs approval by the European Council (made up of the EU member states), but the only real sticking point there appears to have been the 95-year period. With the term reduced to 70 years, that measure looks set to pass into law.

When the UK government balked last month at the 95-year term, British music trade group BPI called on the government "to match its supportive rhetoric with concrete action, by moving heaven and earth to reach an agreement under this EU Presidency that will deliver an improved term of copyright for performers and music companies."

Heaven and earth appeared to have been moved, all in the name of "harmonization" of copyright terms. Only a day before the vote last week, international music trade group IFPI made the harmonization point clearly:

"Europe has always prided itself on being a champion of culture, yet the EU is lagging behind many other parts of the world when it comes to protecting its recordings," it said. "European artists, performers and producers are provided with a 50 year period of protection for their work to enable them to benefit from the recordings they have made. This is a much lower level of protection than many other countries around the world which provide for between 60 and 95 years' protection."

Even within the EU, terms are grossly unequal in duration (authors get life plus 70 years, for instance, for their books). While this might sounds like an argument for "harmonizing" terms downward, it never is; harmonization moves only in the upward direction. It's a transparent strategy that Big Content has been pushing for years—encourage countries to extend copyright terms, then browbeat others into following suit by going on about "competitive disadvantage."

As for the public domain, there's no point even arguing about it—such groups simply take it for granted that copyright is a natural state and that "falling out of copyright" is an obvious evil.

As IFPI put it last week, "More treasures of Europe's recorded music heritage are falling out of copyright every year. These are the recordings which have contributed so much to Europe's reputation for creativity and cultural diversity. With today's longer life spans, artists and performers are beginning to see their recordings falling into the public domain in their lifetime. Every year, an increasing number of artists are being deprived of part of their income."

But deprivation goes both ways. Every time that a term extension is passed, the public is deprived of the chance to remix, mashup, sample, share, and otherwise build upon the cultural work of a half century before.