All law must evolve to meet the needs and demands of the times. It is implicit that the evolutionary process necessitates periodic revision of existing laws, provided they are enacted after a careful and rational study of the issues at stake. Dissent is to be expected but then dissent is good as it ensures that opposing views get highlighted. Sadly the changes that ultimately become law, do not always abide by the principle of greater good for the greatest numbers.

Recently music producers and performing artists had reason to rejoice, as the European Union-Council of Ministers voted to increase the level of protection of performers, by extending the copyright term on sound recordings from 50 years to 70 years. The EU directive also made provision for 20% of revenues to be set aside by music companies for creation of a fund for featured and non-featured artists and sessions musicians on a recording, who had assigned away their rights for a one-time payment; ‘termination rights’ for performing artists by which copyright would revert back to the artist subject to certain conditions; and harmonizing the calculation of the term of protection for songs and musical works with words /lyrics, to 70 years after the death of the last surviving person, whether authors of the lyrics or composers of the music.

This is the culmination of a campaign by artists led by Cliff Richard, Roger Daltry (The Who), Paul MaCartney, Bjorn Ulvaeus (Abba) and others, on the grounds that many of them who started their careers at a very young age face an income gap at the end of their lifetimes and a 50 year copyright term deprived them of royalty earnings at a time when they needed it most, in their old age. No doubt there is some logic in this argument and but the reality is that the increase in the copyright term will mainly benefit a few top selling artists who have already made millions, while the average artists who comprise nearly 80% would benefit only marginally, though it is hoped that this would still amount to something.

On the contrary, maximum benefits would be reaped not even by the few top artists, who were bound by their contract terms, but by the major music companies. If you factor in that the copyright of early recordings of artists like the Beatles, Rolling Stones, the Who and others are due to expire in the next few years, you can understand the huge sigh of relief that music producers must be heaving. It may be noted that even through the years of declining sales, back catalog accounted for a major chunk of music companies’ earnings, which in all probability has been their lifeline, more so today. Not surprisingly these companies had been among those lobbying hard for an extension of the copyright period in order to hold on to their money spinning back catalog, especially music of the 60s and 70s. Though their demand was for an extension of the copyright term in line with the existing US copyright term of 95 years, the breather they have just got must come as a major consolation.

Many countries including Sweden, Netherland, Czech, Romania, Slovakia, Luxemburg, Belgium and others were strongly opposed to the proposal arguing that, it does not maintain a fair balance in the copyright system,  extensions only undermine respect for copyright and contrary to the purported objective of the proposal, according to a Joint Academic Statement issued by the Centre for Intellectual Property Policy & Management (CIPPM, Bournemouth University), the Centre for Intellectual Property & Information Law (CIPIL, Cambridge University), the Institute the Institute for Information Law (IViR, University of Amsterdam) and the Max Planck Competition and Tax Law (Munich),  72 percent of the financial benefits from term extension will accrue to record labels. Of the 28 percent that will go to artists, most of the money will go to superstar acts, with only 4 percent benefiting those musicians mentioned in the European Council press release as facing an "income gap at the end of their life times". Nevertheless, lobbyists seem to have won the day, with the EU Council voting 255 for, 76 against and 14 abstentions, in favour of  the extension. Member states will have to incorporate the new provisions into their national legislations within two years.

The original Statute of Anne granted protection to the publisher of a work for a period of 14 years after which the right re-vested in the author for a further period of 14 years. From then the copyright term has been extended several times.  Opposers  of the present copyright system have long argued that term extensions stifle creativity and deprives the public of free access to historical works to the detriment of our cultural heritage. Though debatable it is argued that many later works based on original work or work in the public domain, have improved or built upon the original. It can be countered that irrespective of the copyright term people who have it in them will create anyway. What really matters is originality and this calls into question what constitutes an original work. Can there be originality independent of our influences, our age old cultural heritage and inherited body of wisdom, even though it is universally acknowledged that the greatness of any work of art is primarily owed to its originality. Even if the entire historical body of works is in the public domain, creation of an original work will never depend on it, that’s why it is original.

While the EU has gone ahead and cleared the term extension, time is ticking away for a related development in the US, which is certain to be watched closely by everyone in the music business. This pertains to the US Law passed in 1978, which granted termination rights (or right to reclaim copyright) to authors of books and music for contracts signed with publishers 35 years from the date of signing of the contract, the first of which will terminate on January 1, 2013. But the law also included a clause which states that the termination rights would not apply to works made for hire. As mentioned earlier the EU also has made provision for similar termination rights after 50 years. Even contracts entered into prior to 1978 in the US, can be reclaimed/recaptured by the authors or their heirs after the initial copyright term of 28 years, the copyright term as per US copyright law being 28+28+19+20=95 years. This means you can recapture your rights, first before the end of the initial copyright term of 28 years, then again before the end of the 56th year and once more before the end of the 75th year. This law gave authors and artists a chance to renegotiate the terms of their contract or recapture their rights and exploit it themselves.

Don Henley (The Eagles) and singer-songwriter Sheryl Crow who founded the Recording Artists' Coalition in the 90s to campaign for more parity for recording artist, believe it is time for every recording artist to be aware of this. Some artists like Bob Dylan, Tom Waits, Tom Petty, Bryan Adams have already started preparing the legal paper work for terminating their contracts. Music publishers are no doubt expected to put up a fight and are bound to claim that sound recordings are made on work for hire basis and thereby claim ownership of the copyright. This according to experts does not hold much validity as the cost of making the record is recovered from the artists out of their earnings and besides normal employer-employee rules that entitle them to benefits like pension, medical insurance, etc, are not applied to them nor is any tax deducted from their payments. However it also depends on the terms of the contract which individual artists signed with the music companies and proving it in a court of law will not be an easy matter considering that there is no precedent.

So the stage is set for a crucial battle the outcome of which is sure to have far reaching impact on the music business.  A law that was constituted to protect authors  of older works from having to “live” with a bad deal they entered into when they had little negotiating skill or leverage, will soon be on test and it will be interesting to see whether justice will indeed prevail.

~ Stanley Paul