The music industry’s arguments

So what’s the term extension debate all about? Why would anyone want to extend the term of copyright on sound recordings? Here we take a look at some of the main arguments being put forward by the music industry to support their case and see whether they stand up.

It’s not fair that performers get less protection than composers
The term of copyright protection for songwriters is life plus 70 years, but it’s only 50 years for performers. It’s only fair that copyright in sound recording should be extended to ensure performing artists benefit as much as songwriters.

Using words like ‘parity’ and ‘fairness’ does give this argument a ring of truth, but in fact the difference in term length is justified because the standard of originality required to qualify for protection as a sound recording is significantly lower than that for a musical work. In other words, it’s a lot harder to write a song than to perform it, and the rights given to the recording artist should reflect that.

In addition, there is every reason to think that the life plus 70 years term of protection for composers is itself too long. In this case, arguing for parity is simply saying that two wrong make a right, and we know this kind of logic is fundamentally flawed.
It’s also important to remember that this form of copyright also covers all other types of sound recording, not just music. That includes dramas, documentaries, radio archives, spoken word, recordings made for research purposes, sound effects, wildlife sounds and unpublished works, much of it with no commercial value. Is the act of recording bird sounds really creatively comparable to that of composition?

Royalties are pensions and it would be cruel to take them away
The term of copyright should be extended because many recording artists have now reached old age and have no other form of income. Extension would mean that they would continue to earn money from their recordings, money which will allow them to pay their heating and nursing home bills.

Very few musicians who were active 50 years ago are still making money from royalties on their recordings. The vast majority were either working under ‘work for hire’ conditions where they were paid for their time and do not hold any rights to the recordings they made, or their recordings are out of print and unavailable, therefore not earning them any money. Only a small minority of recordings from 50 years ago still make money, and many of these musicians are the famous ones, like Sir Cliff Richard, who have the means to secure a pension without relying on old royalties.

In fact, musicians, like all other professionals, should be paying into pension schemes to ensure that they have a comfortable retirement rather than relying on unpredictable income such as royalties.

We spoke to Age Concern and they were not aware of the cessation of royalties being a significant factor in pensioner poverty. Indeed, they recommend that any musician struggling to make ends meet should contact them in order to ensure they are receiving all the benefits to which they are entitled. We have many problems with pensioner poverty in the UK, but the term of copyright protection on sound recordings is not one of them.

The current term gives an unfair advantage to businesses from other countries

The term of copyright should be extended to remove an unfair disadvantage to the UK sound recording industry as compared to its global competitors. The US extended copyright protection for sound recordings to 95 years in 1998, Australia and Brazil offer 70 year terms, whilst India offers 60 years – our smaller potential for profit is a dampener on competitiveness.

There is no guarantee, nor evidence, that extending copyright and improves competitiveness. The competitiveness of the creative industries is the product of a complex range of factors, including the discovery of new bands, improvements in distribution, marketing and the exploitation of new technologies, such as the sale of ring tones for mobile phones. None of this relies upon extending copyright.

Indeed, by keeping copyright term at 50 years, the major labels may find themselves moving away from over-exploiting a minority of recordings, such as The Rollings Stones, Beatles and Elvis back catalogues, and refocusing on finding and supporting emerging new artists and scenes. One could argue that music falling in to the public domain sooner in the UK could increase British competitiveness, allowing for more music to be commercially released by more people in different formats.
Additionally, there would be more incentive to conserve older recordings on fragile media, thus allowing for the development of conservation techniques that would be valuable the world over. And with a larger body of public domain work to play with, it would be more attractive for businesses to experiment with new models of digital distribution.

Back catalogues fund new music
The UK is a world-beater in terms of musical quality. The only reason for this standing is that the UK record industry has been able to re-invest the proceeds from old sales into new artists. The UK record industry invests about 13% of its revenues in developing new artists, however, if profit margins on recorded music continue to fall, the industry will need term extension to ensure that it will successfully recoup these investments. The term of copyright should be extended because it will ensure that quality new recordings continue to be released.

This argument can only be made by record labels with extensive back catalogues, yet if it were true, the small independent labels who do not have a lot of old music to exploit would not be expected to produce much new music of worth. Instead, we see that whilst a handful of major record labels split around 85% of the market between them, they are not breaking new acts in the way their rhetoric would suggest. In fact, a disproportionate amount of economically successful innovation is coming from the companies who make up the remaining 15%, the so-called “independents”.

Three of the seven debut albums in the top ten albums by sales in Q1 2006 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. None of these innovative companies have ancient back catalogue earnings to rely upon when finding money to invest in new ventures, and none of them will benefit from extending the terms on sound extensions.

Record labels fund new acts on the basis of prospective profit, i.e. they expect to make money from the work of that act. They do not deliberately subsidise new acts from the profits of other, older works. Generally speaking, businesses fund projects that they believe will return a profit, or at least break even, and if there is ’spare money’ available, this too is invested in projects that expect to do well. The implication that money from old recordings is used to support modern sub-par projects for some sort of reason of altruism or public good is not in keeping with normal business practices.