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New rules on term of protection of music recordings

21 September, 2011

This article is also available in:
Deutsch: Neue Schutzfristen für Tonaufnahmen

On 12 September 2011, the Council adopted, by a qualified majority, a Directive that extends the term of protection of the rights of performers and phonogram producers on music recordings from 50 to 70 years.

According to the Council press release, the Directive is necessary to ensure that performers will have protection on their works during their entire lifetime.

However, it is unlikely that this term extension will benefit the vast majority performers, while the broader economic effects are, at best, unproven. First, assuming that collecting society licence fees stay the same, roughly the same amount of money will be divided between a larger pool of performers and rights holders. Many of those will be dead. Consequently, young performers entering the profession are likely to receive less.

Second, performers lose control of their work once they sign a recording contract with a record company, and extending the term of protection does nothing to address this problem.

Third, according to a joint academic statement signed in 2008 by 80 eminent academics, including several Nobel Laureates, 96% of the economic returns will go to the major record labels and top 20% of performers. Other studies suggest the extension will lead to higher prices for consumers.

Moreover, the term extension diverts billions of euro away from EU citizens because, for countries or regions that are net importers of copyrighted goods, longer terms of protection of music recordings would inevitably result in increased payments to foreign rights holders. This is likely to mean a net outflow of revenue from the EU, overwhelmingly to the benefit of the US.

Finally, the decision is culturally damaging. It will likely lead to many works being locked away, discouraging and shrinking the public domain. For example, a US study for the Library of Congress by Tim Brooks (2005) established that the prime re-issuers of historical recordings were not the copyright owners.

In an open letter in April this year four leading IP professors, including Professor Lionel Bently, Director of the Centre for Intellectual Property and Information Law at the University of Cambridge, argued that "if there was a policy designed to suppress social and commercial innovation, retrospective term extension would be your choice."

In short, this is a piece of European legislation which is almost impressively bad. It achieves the worst of all available outcomes, disadvantaging young performers, placing a barrier between citizens and their culture and producing a net loss of money from the EU to the US.

New rules on term of protection of music recordings (12.09.2011)

The Proposed Directive for a Copyright Term Extension -A backward-looking package (27.10.2008)

The European Strategy: Send Money to the US (Part Deux (4.11.2011)

Directive of the European Parliament and of the Council amending Directive 2006/116/EC on the term of protection of copyright and certain related rights

Commission's Press release on the Directive on the term of protection of copyright and certain related rights

The Value of the EU Public Domain (2009)

Open Letter (11.04.2011)

(Contribution by Daniel Dimov (EDRi) and Peter Bradwell (EDRi-member Open Rights Group -UK))



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