British MPs in sensible decision shocker!

It's hard to believe but the Government last week stood up to lobbying by the music industry and a handful of pensionable pop stooges and turned down claims for a copyright extension from 50 years to 70 years for recorded music. Last year the Gowers Report recommended against an extension but in May the committee for media, culture and sport backed the record industry. Fortunately, the Government ignored the committee, citing Gowers:

"The review... concluded that an extension would not benefit the majority of performers, most of whom have contractual relationships requiring their royalties be paid back to the record label."

At BoingBoing Cory Doctorow praised the decision:

This is the first time that I know of, in the history of the world, that any country has given up on extended copyright terms. In the US, the Supreme Court found that 98 percent of the works in copyright were "orphans" with no visible owner and no way to clear them and bring them back into the world. Extending copyright dooms nearly every author's life's work to obscurity and disappearance, in order to make a few more pennies for the tiny minority of millionaire artists like Cliff Richard (and billionaires like Paul McCartney).

Of course, the record labels refuse to give up, vowing to continue the fight in Europe on their own. However much money they lose through filesharing and other nefarious threats to their business, there's always a little cash left for lobbying.

If anyone actually believes that the record labels are on the side of the artists, a recent study by the Centre for Intellectual Property Policy and Management at Bournemouth Law School suggests that copyright may not benefit artists at all. "Writers in Germany earned less than those in the UK, despite the fact the country's copyright regime is more beneficial to authors," The Register reported.

Another study, by a Cambridge economist, found that the optimal copyright term is 14 years, which is what it was way back in 1709 when it was established in law in the first place. Is there any chance of copyright terms being rolled back that far, or even rolled back at all? Of course not but it's good that someone's doing the maths.

Not only did the Gowers Report argue against copyright extensions, it also suggested that restructuring record contracts to give artists a better deal would be more effective than copyright extension. The record labels, who as we all know want nothing more than a good deal for their artists, seem strangely reluctant to follow Gowers' advice.

Gowers upsets record labels

Andrew Gowers, the former editor of the Financial Times, delivered his Review of Intellectual Property today and while it could have been better for digital rights campaigners, there are certainly some positive recommendations. However, they are only recommendations, so the Government may decide to ignore them. A few weeks back I wrote about the record industry's campaign to have the copyright term on recordings extended from 50 years to 95 years. Today, Gowers recommended that the term stay at 50 years. The record industry are undeterred, however. Even before the Gowers Review was released, they had begun their campaign to persuade the Government to ignore him.

Digital rights guru Lawrence Lessig is pleased that Gowers recommended against retrospective copyright extensions. He writes: "Bravo. Now if only the British (and every) government could muster the courage to follow this advice."

He doesn't sound too confident. If the Government doesn't rule out retrospective extensions, we'll have this debate again in 2012 when The Beatles recordings begin to come out of copyright. That's if the record labels can keep their greedy mouths shut for that long.

Gowers also argues for a change in the law to permit copying for personal use. This is good news but really it's just common sense. If you buy a CD, why shouldn't you be allowed to copy it to your MP3 player?

However, there are other recommendations that cause concern. The review calls for stronger enforcement of IP rights through, among other things, tougher penalties including up to ten years in jail "online copyright infringement". As the Open Rights Group makes clear in their overview, Gowers appears "to make no distinction between large-scale commercial counterfeiting and small-scale non-commercial acts carried out by individuals".

Kevin Marks goes further on his blog and says that Gowers uses rhetoric that actively reinforces the idea the commercial counterfeiting and personal downloading are equal offences.

Finally, the always thought-provoking Techdirt argues that the review is too balanced. This isn't a balanced fight where "what one side gives up, the other gains", instead everyone needs to "rethink how they view the space".

Overall though, the Gowers Review is positive. Let's hope the Government follows his recommendations.

Release The Music

The Open Rights Group has set up a website, Release The Music, to campaign against the attempt by the record industry to extend the copyright period on sound recordings. I've been blogging about this issue for the last couple of days but the ORG site has a briefing that covers some things I haven't mentioned. They begin with a great statement of the case:

Copyright is a bargain. In exchange for releasing sound recordings to the public, copyright holders are granted a limited monopoly during which they can pursue anyone who uses their recordings without permission. But when this time is up, these works join Shakespeare, Shelley and Bernard Shaw in the proper place for all human culture ? the public domain.

The public domain is about to benefit from its half of this bargain, as tracks from a golden age of recorded sound reach the end of their copyright term. Seminal soul, reggae and rock and roll recordings will soon be freed from legal restrictions, allowing anyone to preserve, reissue and remix them.

The ORG briefing goes on to point out that the music industry has offered no evidence to support its claim:

In 2005, the Royal Society of Arts sponsored an international commission of experts from the creative industries, law, economics, science, technology and the public sector to produce The Adelphi Charter, a framework for policy makers who are considering changing their IP legislation. The Charter urges governments to automatically presume against extending the scope or term of IPRs, stating that ?the burden of proof in such cases must lie on the advocates of change?, who should provide rigorous analysis which clearly demonstrates that any extension would be in the economic and civil interest of the public at large.

But despite this clear guidance, those asking the government to extend the length of copyright term for sound recordings have published no compelling evidence or analysis. Instead, the arguments they have presented to the Gowers Review collapse under even passing scrutiny.

Major labels argue that revenues from copyrighted recordings allow them to take risks with new artists but, as the ORG briefing demonstrates, it isn't the major labels who are doing the innovating:

Three of the seven debuts from the best-selling albums chart mentioned by the BPI were nurtured by independent labels who had existed for less than twenty years between them, i.e. 43% of successful debuts came from labels within that 15% market share. And a 17-year-old record label, Warp Records, won this year’s Digital Music Awards for their music store, None of these innovative companies has ancient back catalogue earnings to rely upon when finding money to invest in new ventures, and none of them will benefit from extending the term on sound recordings.

Next the briefing skewers the claim that royalties from past works serve as a pension for washed-up rock stars. As the ORG points out, 80 per cent of recordings do not earn any royalties for the artist - it's part of the ingenious way that the record industry screws artists. So what about the other 20 per cent?

Industry revenue figures are shrouded in secrecy, but some evidence on the 20 per cent of artists who do earn royalties can be found. For example, out of 15,500 artists surveyed for the Monopoly and Mergers Commission in 1996, only 16.5 per cent were likely to earn more than £1,000 that year in royalties, with under 2 per cent earning more than £20,000. Bear in mind that these figures did not specify how many of these royalty payments were for tracks recorded over fifty years ago: it seems safe to assume that these would make up only a tiny fraction of total royalty revenues.

So why does Sir Cliff Richard, a high profile campaigner for term extension, characterise sound recording royalties as a ?pension for artists?? What figures are available show that extension would be of help only to Sir Cliff and a tiny number of other already highly successful artists.

So copyright extensions won't help artists and, the briefing goes on to explain, they won't help fans either. A recording is far more likely to be made available to the public once it falls out of copyright:

A survey by Tim Brooks on reissues of pre-1945 sound recordings across the US (where they are still protected by copyright) and the EU (where they’re not) showed that for every five-year period, non-rightsholders have issued more historical recordings than rightsholders at a ratio of close to two to one.

And copyright extensions will make it harder to preserve our culture:

As well as being economically illogical, extending the term on sound recordings would also privatise and could even destroy vast swathes of British cultural heritage. Because of the inadequacy of existing provisions in copyright law, the British Library Sound Archive, one of the largest such archives in the world, is unable to digitise sound recordings still under copyright without seeking individual permissions from existing rightsholders. Although digitisation is important for preservation, the size of the sound archive and the cost of clearing the rights means that such a process is too expensive for the majority of recordings. So digitisation is put on hold, endangering the education, inspiration and enjoyment of future generations.

It's worth reading the whole thing. It's a very compelling argument against giving in to a few greedy major labels.

Record labels: seeking new ways to screw fans and artists

The issue of copyright extensions for recorded music is back again. There's a lot that I want to say about this so I'm going to do it over a few posts. I'll start off with a slightly re-written version of a post I made on my now defunct Music Radar blog back in March: A group of music veterans are once again lobbying for the extension of copyright protection from the existing 50 years to the 95 years that America introduced in 1998.

The stars, including Sir Cliff Richard, Acker Bilk and Kenny Ball, are upset that they stop getting paid for their work after a mere half century. The rest of us stop getting paid for our work when we finish it but that’s pop stars for you.

Jethro Tull's Ian Anderson told The Telegraph last March:

Probably 40 per cent of the greatest music you have ever heard came out of this little country of ours. But once it disappears into the public domain it becomes instantly devalued because you, I or the bloke next door could set up a little record company and, with complete impunity, sell that music for £1.99 and pay not a penny in royalties.

Ian is talking nonsense. The idea of work "disappearing" into the public domain is laughable - there are vast numbers of copyrighted recordings that are sitting in record company archives because the label that owns the copyright doesn’t consider it to be financially viable to release them.

Once a work is out of copyright it becomes a cultural artifact. Far from disappearing, it becomes something we can all enjoy for a minimal fee. Something that others can be inspired by, remix and learn from. That’s what creative culture has been about for hundreds of years and these has-beens are fighting to destroy that.

Anderson continues:

…the unsung heroes of the 1950s depend on royalties to pay heating and nursing home bills.

Well plenty of pensioners have to pay heating and nursing home bills. And they don’t have the luxury of getting paid for work they did fifty years ago.

A growing number of people, myself included, think that, far from being extended, copyright needs to be cut back. It has been twisted and exploited far beyond what it was originally intended to achieve. Max Barry, author of the novel Jennifer Government, makes a good case:

Copyright extensions, of the kind popping up everywhere lately, have nothing to do with encouraging more creative work, and everything to do with protecting the revenue streams of media companies that, a few generations ago, had an executive smart enough to sniff out a popular hit. It’s a grab for cash at the public’s expense.

The fact that there is any posthumous copyright protection at all proves that the law is intended to benefit people who are not the original creator: that is, heirs and corporations. The fact that copyright extensions retroactively apply to already-created works proves they’re not meant to encourage innovation. The only reason copyright extension laws keep getting passed is because the people and companies that became fabulously rich through someone else’s idea are using that wealth to lobby government for more of it.

I’d make copyright a flat ten years. You come up with a novel, a song, a movie, whatever: you have ten years to make a buck out of it. After that, anyone can make copies, or create spin-offs, or produce the movie version, or whatever.

Now that would be an incentive. You’d see all kinds of new art, both during the copyright period, as artists rush to make the most of their creation, and after, when everybody else can build on what they’ve done and make something new. You’d see much cheaper versions of books and movies that were a decade old. You wouldn’t have the descendants of some writer refusing to allow new media featuring the Daleks, or Tintin, or whatever. And artists with massive hits would be merely rich, not super-rich.

He's writing from an American perspective but the principles are the same. I agree with him, except I'd be happy with a twenty year copyright term rather than ten. Of course, there's no chance of copyright terms being decreased. The best we can hope for is that they won't be increased any further.

This argument has blown up before. Then even The Times - hardly known for its liberal, free culture outlook, came down against the music industry:

[Record labels] are wilfully ignoring the vital creative role of the public domain in reinvigorating our common culture. Had they been genuinely innovative over the past decade — beyond discovering Crazy Frog and “girl power” — the moguls would have noticed that their industry’s greatest injections of energy have originated not within their own well-cushioned empires but in the public domain.

Remember their aversion to MP3 downloads, now a vast corporate revenue stream? Or the copyright-breaching “mash-ups” — unauthorised combinations of existing music samples mixed by DJs — that first attracted music industry writs, and then were worked into Kylie’s routine?

Digital technologies are merely amplifying the historic tendency towards mixing and sampling that has shaped works from Macbeth to Mickey Mouse. Once creative works are in the public domain, people frequently make wonderful new things with them — a process denied by the encroachment of corporate interests through copyright extensions.

Would West Side Story have been made if Shakespeare’s heirs could protect Romeo and Juliet? Would Frank Capra ’s It’s A Wonderful Life have been reinvented as a Christmas TV classic had it not slipped out of copyright in 1975 and been rediscovered by a new generation who could buy it cheaply on VHS?

At the risk of boring you, I'll post more links on this topic over the next few days.