Out-Law News | 08 Sep 2008 | 5:34 pm | 2 min. read
The Open Rights Group (ORG) has produced an analysis of the figures used by the Commission itself to conclude that the move is designed to benefit the music industry and not, as Commissioner Charlie McCreevy asserts, performers.
The ORG figures show that all but the top 20% of earning performers in the music industry can expect to earn between an extra 59 cents and €26.79 a year under the extension from 50 to 95 years.
Record labels, though, will earn an extra €200,000 to €4.1 million a year each under the new scheme, it said. "Now at least we get to the heart of the matter that this is a windfall for record labels," said ORG's research.
McCreevy, the internal markets Commissioner, has backed the extension to 95 years, saying that it would provide players with an income to the end of their life. The move would bring the royalties available to performers more closely in line with that of writers, who receive payments for 70 years after their death.
The Commission's stance has been criticised as being adopted in the face of evidence that a term extension does not make economic sense. An academic who undertook research into the issue on behalf of the Commission accused it of ignoring the evidence and being swayed by lobbyists for the music industry.
Professor Bernt Hugenholtz, director of the University of Amsterdam's Institute for Information Law (IViR) and the academic behind research on term extension for the Commission, wrote an open letter to the Commission accusing it of "wilfully ignoring" evidence that did not support its policy.
ORG used some of the same studies relied on by the Commission but came to a very different conclusion.
It said that the proposal would either cost consumers more or involve smaller payments to artists. ORG's study said that the Commission had claimed that market forces dictated that the price of music would not rise, but that performers would receive higher payments, but that this was impossible.
"It is logically impossible to have benefits to producers and no costs to consumers," said ORG's study. "The reality for consumers … is more likely to be one of significant costs … We believe it would be fair and proper to assume that more evidence on the cost to consumers is likely to be forthcoming as more sound recordings enter the public domain. In the meantime any attempt to extend term should be put on hold."
When proposing the term extension, the Commission said in a statement that performers deserved to earn a living from the records they played on decades ago. "The Commission believes that copyright represents a moral right of the performer to control the use of his work and earn a living from his performance, at least during his lifetime," it said.
ORG, though, said that granting such a right would not strike the right balance between creators' and users' rights. It also said that even if the Commission's aim was justified, the term extension was a poor way of achieving it.
"It seems unclear why the Commission is so worried about ageing session musicians living in poverty when there are so many other groups that are equally, if not more, disadvantaged," said ORG's analysis. "It is further ill advised to address this problem via an indirect tax that is regressive and hugely inefficient. As we will demonstrate, the Commission's proposal will do very little to help the majority of Europe's recording artists."
ORG's research is part of its submission to the consultation process of the UK Intellectual Property Office (UK-IPO), which will in turn respond to the Commission's consultation.
"The Commission's proposal is flimsy, misleading, and peppered with contradictions. Our submission asks the UKIPO to reject it in the strongest terms," said an ORG statement.
UK intellectual property policy has followed the recommendations of the Gowers Review of Intellectual Property since its publication in 2006. In it ex-Financial Times editor Andrew Gowers opposed any extension of the copyright term for musicians.