British Top Legal Advisers – Copyright Term Extension is Bad

Many advocates and experts from around the world have had a long and hard fought battle to stop the major copyright industry’s push to extend the term of copyright.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

It’s very likely to be welcome news in Britain when this kind of opinion comes from “leading European centres for intellectual property research”.

In the last couple of months, copyright term extension in Britain seems to have become a dormant topic. The last major movement in this field came back in early March where a British MP objected to Copyright Term Extension legislation. Now, the Open Rights Group is reporting that top legal advisers are saying that, among other things, “The proposed Copyright Extension Directive will damage European creative endeavour and innovation beyond repair.”

Said Gavin from the Open Rights Group, this comes at a time with “the confusion and disillusionment of Ireland’s rejection of the Lisbon Treaty still ringing in the Commissions ears”

The letter (PDF) to José Manuel Barroso, president of the European Commission contains the following:

According to press reports, a draft directive extending the term of copyright for sound recordings by 45 years to 95 years is about to be adopted by the Commission (“before the summer break of 2008”). This Copyright Extension Directive, proposed by Commissioner Mccreevy, is likely to damage seriously the reputation of the Commission. It is a spectacular kowtow to one single special interest group: the multinational recording industry (Universal, Sony/BMG, Warner and EMI) hiding behind the rhetoric of “aging performing artists”.

The Commission is required to conduct an impact study for each directive it proposes. We, the leading European centres for intellectual property policy research, have collectively reviewed the empirical evidence. Our findings are unanimous. The proposed Copyright Extension Directive will damage European creative endeavour and innovation beyond repair.

That’s got to leave a mark. The impact assessment doesn’t seem to touch on the subject lightly either (PDF). From the impact assessment:

From the point of view of the Internal Market, the term of protection for phonogram producers does not cause particular concern since the term has been harmonised in the Community and also been incorporated by the 10 new Member States. (…) Moreover, it seems that public opinion and political realities in the EU are such as not to support an extension in the term of protection. Some would even argue that the term should be reduced. At this stage, therefore, time does not appear to be ripe for a change, and developments in the market should be further monitored and studied.”5 It is indeed hard to see how extending exclusive rights to the catalogue of recorded music for another 45 years would benefit society. Following years of fierce and sustained lobbying by the trade bodies of the record industry, however, the copyright unit of the Internal Market Directorate is currently drafting the text of the extension directive which the European Commission aims to adopt as a formal proposal to the European Council and the European Parliament “before the summer break of 2008”. It is still possible for the Commission to see sense, in particular the commissioners who speak on competition (Neelie Kroes), consumer protection (Meglena Kuneva), enterprise and industry (Günter Verheugen), the information society (Viviane Reding), and science and research (Janez Potočnik).

In order to assist rational policy making, leading research institutes called a meeting at Bournemouth University in May 2008. Collectively, we have reviewed the empirical evidence on the issue of term extension.

The impact assessment suggests the following:

– We have seen no evidence that living artists as a whole would benefit decisively from an extension of exclusive rights held by record companies. The benefits will fall to those who need it least: already wealthy performers, and their estates and record companies.
– An exclusive term of protection of 50 years should be more than sufficient to cover the investment horizon of record producers. Any retrospective protection is in effect a windfall that will negatively affect access to, and exploitation of the back catalogues of recorded music.
– While the empirical evidence is missing, it is simply preposterous to claim both, that term extension does not make any difference to consumer prices, and that record companies need term extension to boost their revenues.
– the effects of term reduction should be as thoroughly investigated as the proposed extension.

With this fresh blow to the copyright term extension in Britain, it’s unlikely that the issues will go away any time soon so long as there is a push to extend it.

Drew Wilson on Twitter: @icecube85 and Google+.

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