EC commissioner Charlie McCreevy has proposed to extend the term of copyright protection for performing artists from 50 years to 95 years.
“Performing artists – no longer be the ‘poor cousins’ of the music business”. It sounds good but does it make sense? There are millions and millions of performing artists, now and throughout history. Most of them are not the cousins of the music business and my guess is that 99.999 % of them will not profit in any way, would this proposal become reality. For the ones that will profit, I am sure they have already profited greatly from the 50 year period, which I find rather long already. There are other ways to secure pensions of performing artists, if that would be a problem. In fact, there are ways to do that within the current framework. This is just a way of trying to make it sound good, but it doesn’t.
The proposal made me think of Bobby Farrel of Boney M, who was wildly famous but did not earn much (others like his producers did) and now lives in the least popular area of Amsterdam. This is a commercial of an insurance company.
For a lenthy, serious and balanced discussion of copyright terms for performing artists (related rights) see the Recast study of the Institute for Information Law, commissioned by the European Commission. Chapter 3 (50+ pages) deals with exactly the subject matter of this proposal.
The report states in the text:
“First, it is questionable whether a term extension would really benefit the majority of
performers or rather a specific group of bestselling artists. [...] Moreover, it is uncertain whether revenues from related rights would provide performers with a certain source of future income or enable them to continue to earn an adequate income through their retirement years. At least, it is questionable whether these revenues would provide an adequate pension for most performers. If so, the question must be raised whether there would not be other, more sophisticated means to achieve this goal, rather than prolonging the terms of protection as an ultimate retirement policy for a small group of performers.”
and the conclusion whether term extension will benefit performers artists is:
“Overall one can say that a term extension would indeed benefit those performing artists that are still popular after 50 years and still receive payments from collecting societies and/or participate in the revenues from the sales of their recordings – providing they have not signed away their rights against a single fee [Like Bobby Farrel above, JvH]. Para. 188.8.131.52 above has shown, however, that the share of recordings that are still commercially valuable after 50 years makes up for only a small part of the overall repertoire. Benefits from a term extension would therefore only accrue to a limited share of performing artists. For the larger part of performers that do not derive substantial revenues after 50 years, a term extension could â€“depending on the contractual settingâ€“ prevent their recordings from either being commercially exploited by a secondary party or by themselves; or from becoming accessible to the general public.”
From the conclusion:
“The authors of this study are not convinced by the arguments made in favour of a term extension. The term of protection currently laid down in the Term Directive (50 years from fixation or other triggering event) is already well above the minimum standard of the Rome Convention (20 years), and substantially longer than the terms that previously existed in many Member States. [...] Perceived from an international perspective the American terms are anomalous and cannot serve as a legal justification for extending the terms of related rights in the EU.”
And about the need for a robust public domain:
“The fact that some recordings still have economic value as rights therein expire, cannot in itself provide a justification for extending the term of protection. Related rights were designed as incentives to invest, without unduly restricting competition, not as full-fledged property rights aimed at preserving â€˜valueâ€™ in perpetuity. The term of related rights must reflect a balance between incentive and market freedom. This balance will be upset when terms are extended for the mere reason that content subject to expiration still has market value. The public domain is not merely a graveyard of recordings that have lost all value in the market place. It is also an essential source of inspiration to subsequent creators, innovators and distributors. Without content that still triggers the public imagination a robust public domain cannot exist.”
Of course, the idea here is that there should be convincing arguments for term extension, for it to be legitimate. McCreevy seems to think it’s the other way around: “I have not seen a convincing reason why a composer of music should benefit from a term of copyright which extends to the composer’s life and 70 years beyond, while the performer should only enjoy 50 years, [...].” That’s turning the issue upside down. Besides 70 years is rather long as well.