Bad news from Denmark. According to an official press release, the Danish government has changed its position and now endorses the European Commission’s proposal to extend the term of protection for sound recordings. Since Denmark was part of a fragile blocking minority in the European Council, there is a danger now that the EU Presidency (Hungary) will try to push through the proposal within a matter of weeks.
After having been adopted in amended form by the European Parliament almost two years ago, the proposal has stalled in the Council, facing fierce opposition from a bloc of mainly Northern and Eastern European countries. Why Denmark has deserted this blocking minority is unclear. But I would be very surprised if the record industry’s concerted lobbying efforts had nothing to do with it.
Whereas the proposal aims at extending the rights of both phonogram producers and recording artists, it is clearly the record industry that has most to gain from term extension. The neighbouring rights in the great hits of the early nineteen-sixties, including records by the Beatles and the Rolling Stones, are soon to expire – fifty years (i.e. the current term) after the recordings were first released. Extending the rights in sound recordings to 95 years (as in the original proposal) or 70 years (as proposed by the European Parliament) would secure the record labels’ monopoly in these valuable recordings for another generation.
The many arguments against term extension are well rehearsed and almost universally endorsed by copyright scholars and economists across Europe.
Probably the most powerful counterargument is that exclusive rights in sound recordings are granted for a reason. The prospect of a temporary legal monopoly acts as an incentive for the industry to invest in recording and distributing sound recordings. Logically, the term of protection should therefore be just long enough for record companies to recoup these investments. While economists cannot exactly calculate the average recoupment time they do agree that the existing term of 50 years is already very generous – in fact, far more than necessary.
Recall that the 1961 Rome Convention that recognizes rights of phonogram producers at the international level warrants a term of only 20 years. Paradoxically, while the recording and distribution costs that in the past justified this relatively short term of protection have dramatically decreased in recent years, the record industry is now lobbying for term extension.
Extending intellectual property rights in the face of expiry for the simple reason that some of these rights still have economic value, is a denial of everything that intellectual property law stands for: granting temporary exclusive rights in the interest of general cultural and economic welfare.
On January 1st of this year (2011), the works of Paul Klee (the wonderful Swiss painter) and F. Scott Fitzgerald (the ever-popular American novelist) fell into the public domain – seventy years post mortem auctoris. While the works of Klee and Fitzgerald undoubtedly still had enormous market value, no lobby or government stood up to argue for term extension.
Like copyrights (and blogs) neighbouring rights must eventually come to an end.
To make sure you do not miss out on regular updates from the Kluwer Copyright Blog, please subscribe here.
Kluwer IP Law
The 2022 Future Ready Lawyer survey showed that 79% of lawyers think that the importance of legal technology will increase for next year. With Kluwer IP Law you can navigate the increasingly global practice of IP law with specialized, local and cross-border information and tools from every preferred location. Are you, as an IP professional, ready for the future?
Learn how Kluwer IP Law can support you.
What needs to happen, and needs to happen fast, is an understanding that works need to become public property, and that extending any exclusivity rights to prevent any property of becoming public, amounts to THEFT from said public. This is what is the terminology used to describe copyright infringement, so it’s only fair to use it here.
‘Copyright scholars and economists’ may argue against extension but they’re not artists. Their views would almost certainly be very different if they were.
“Logically, the term of protection should therefore be just long enough for record companies to recoup these investments.”
This is a ridiculous assertion. “Recouping” an investment means getting back what you spent.
This is actually losing money because of the investment of TIME and operating expenses. PROFIT is an incentive, not “recoup.”
“Paradoxically, while the recording and distribution costs… have dramatically decreased in recent years…”
You come across as disingenuous. You do not acknowledge that REVENUES have decreased drastically as well, largely due to PIRACY.
When Ireland had a referendum on the Lisbon Treaty they were told to have another one, and come up with the right answer this time. Looks like Denmark has been bent over and dicked in exactly the same way.
It is the global corporations which are behind this.
The argument against “piracy” is at best hypocritical; since these record companies are themselves the biggest pirates of all – stealing work which was ALREADY WITHIN PUBLIC DOMAIN, and holding it for ransom ……..
Mr. Barker, although your statement is probably true (and King Django kindly provides evidence for your claim), it is also irrelevant. Copyrights are temporary monopolies established to encouraged the publication of works.
And to mr. King Django, it is very clear that the artist is to make a profit from his works. The specific case presented here is related to the fact that the copyright is often held, not by the artist but by a record company. This means that the profit for the artist is to be derived from the transfer of copyright by the artist. As this still accounts for the majority of cases, combined with the fact that it was the recording industry pushing for the term extension (and not the artists), the argument is not disingenious.
Furthermore, an artist that does not transfer his copyright would be hard pressed NOT to squeeze the last penny of profit from his work in FIFTY years-so why extend the term? And lastly, copyright was not established for the artist’s benefit but for the common good.