By David Cronin for Intellectual Property Watch
BRUSSELS – Strong opposition is being voiced by members of the European Parliament over plans to extend the copyright protection applying to sound recordings from 50 to 95 years.

Both left and right-leaning Parliament members (MEPs) have signalled that they intend to vote against the proposed extension at a crucial meeting of the assembly’s legal affairs committee scheduled for 11-12 February, rejecting arguments that the move is necessary to guarantee higher pay for session musicians.

Charlie McCreevy, the European Union’s single market commissioner who hatched the extension plan, recently told a conference in London that the proposal would bring EU law in line with that of the United States. He also claimed that session musicians would benefit considerably as the new proposal would allow them to make a claim for remuneration based on sales, giving them an average yearly payment of €2,000 euros.

“Opponents to the extension argue that an additional annual income of around €2,000 per year for session players is not significant enough to allow performers to participate fairly in the millions that the proposal would provide for record companies,” McCreevy said. “Well, to that criticism I can say that the average annual pay-out might not appear significant to academic critics but €2,000 extra per year is significant for an average session player.”

But Helga Trüpel, a German Green Party MEP, said that the proposal, known in Euro-speak as the term extension directive, was tailor-made to suit the four companies which dominate the music industry: Sony, Warner Brothers, Universal and BMG.

“The ghost of the big four is behind all the recommendations we have at the moment,” she said. “It is very important to put an end to this directive.”

Christofer Fjellner, a Swedish member of the centre-right European People’s Party, the assembly’s largest political grouping, argued that it would be “irresponsible to push forward” the proposal.

“I don’t think it is a brilliant idea to extend copyright,” he added. “Copyright is a government-sanctioned private monopoly. You do need property rights and intellectual property rights directive to force innovation and R&D [research and development]. In this area, I have a hard time seeing how the extension would create more innovation and more R&D.”

The Fairy-Tale of Extension

The Open Rights Group, a civil liberties organisation, has contested McCreevy’s estimates about the extra revenue that would accrue to session musicians. It has calculated that some 80 percent of recording artists would only receive between €0.50 and €26 each year if the proposal becomes law.

Becky Hogge, the organisation’s director, accused McCreevy of concocting a “fairy tale”.

“The fairy story is of the poor performer who has played on a track in the 1960s and has collected royalties for 50 years,” she said. “We are told that [without extension] he will lose the main source of income at the very time he needs it most. This looks simple enough for MEPs to give it a happy ending.

“Like Jack and the Beanstalk, Cinderella and Rapunzel, the story of the poor performer doesn’t really stand up to scrutiny,” she added. “All the evidence shows that the term extension directive will do very little and almost nothing to help the poor performer and everything to line the pockets of the world’s record labels.”

Pekka Gronow, a sound archivist and professor of ethnomusicology in the University of Helsinki, said that the proposal could have profound implications for access to cultural heritage.

He expressed particular concern about how it could hamper broadcasters from making use of old radio programmes, which contain excerpts of music.

“The biggest producers of recordings in Europe are not record labels,” he noted. “They are broadcasters. But there has been no study [requested by the Commission] on the effects of the directive on broadcast archives.

“As a result of a successful lobbying campaign, the commissioner has decided to extend the term whatever the cost and told his staff to write the motivation,” Gonnow said. “The problem is that while the directive will not do the things it says it will do, it will have many side effects which have not been recognised by the Commission.”

Martin Kretschmer, a professor at the University of Bournemouth in Britain, said that the market penetration of the four largest music labels is so vast “there are almost no significant recordings reaching back more than 50 years which are controlled by other companies.”

More than 70 percent of the revenues resulting from a copyright extension would go to the record labels, he added. As lengthening their exclusivity over pieces of music would enable them to charge higher retail prices, they could reap extra profits of between €44 million and €843 million per year.

Kretschmer said that McCreevy’s support for term extension contradicts the findings of a Commission paper from 2004, which raised fears that taking such steps would reduce the amount of music available to consumers. “What has happened to the discussion in the last four years?” he asked. “I’m at a loss to say. When it comes to justification, there is none. What you get instead is a fairy tale.”

Defining Support for Performers, Major Labels

Guenaille Collet from the Association of European Performers Organisations (AEPO-ARTIS) – an alliance of groups that collect royalties for artists – endorsed the broad thrust of the directive during a meeting in the European Parliament on 27 January. “So far I have heard few proposals to improve things,” she said. “Performers need to support the directive.”

Sharon Bowles, a British Liberal Democrat MEP [Editor's Note: her party affiliation was initially mistated in this story], said that major record labels are perturbed that they will lose some of their main sources of income once the copyright on vintage rock ‘n’ roll hits expires.

“They see this as one way of maintaining their income streams,” she said. “If the business model hasn’t moved on to take account of the digital age, then I’m not convinced that the extension of copyright is the right way to address that.”

But the newly published annual report of the International Federation of the Phonographic Industry says the large labels it represents are rising to the challenges posed by the internet. It depicted 2008 as a positive year for digital sales. The best-selling online single Lil Wayne’s Lollipop notched up over 9 million sales, it said, an increase of 1.8 million over the biggest success the previous year.

John Kennedy, the IFPI chief executive and a strong supporter of McCreevy’s blueprint, said: “There is a momentous debate going on about the environment on which our business and all the people working in it, depends. Governments are beginning to accept that – in the debate over ‘free content’ and engaging ISPs [internet service providers] in protecting intellectual property rights, doing nothing is not an option if there is to be a future for commercial digital content.”

David Hammerstein, a Spanish MEP, suggested, however, that the copyright extension plan is inappropriate for an era where music is increasingly being listened to via the internet. “I read recently that only 0.1 percent of downloads from the internet are – according to every law in the world – legal,” he said. “That makes you think: can we really put gates and fences on the internet?”

David Cronin may be reached at info@ip-watch.ch.