A Look Back – European Copyright Term Extension Effort Draws Concern

There’s been quite a lot of evidence to support the idea that copyright term extension in Europe is a bad idea, yet the people tasked to determine whether or not it’s a good idea seems to simply think otherwise.

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

Many suggest that the evidence has been ignored in favor of lobbying.

The Open Rights Group reported on a letter sent from Professor Bernt Hugenholtz, a commission adviser, to the Commission President Jose Manuel Barroso. The letter essentially asks why the evidence arguing against copyright term extension has been, by and large, ignored.

The term has been recommended to be extended by 45 years. The Open rights Group says that if the commission is extending the term of copyright, it would be “locking away vast swathes of our cultural heritage in a commercial vacuum for 45 years, it was clear that they had rejected all the expert evidence in favour of voodoo economics.”

The letter contains the following:

The Explanatory Memorandum that accompanies the proposal for a term extension of the rights of performing artists and phonogram producers, which is the centre-piece of the Commission’s package, references at various places studies and data provided by stakeholders, but fail to even mention our Recasting Study, which deals with the topic of term extension in detail and, on the basis of a thorough legal and economic analysis, rejects the main arguments made in favour of an extension. The Explanatory Memorandum also disregards our critical analysis of the issue of co-written musical works, which constitutes a seperate chapter of the Recasting Study.

Amazingly and quite misleadingly, the Explanatory Memorandum states (on p. 6, in fine) that ‘[T]here was no need to external expertise’. This is patently untrue, as the terms of reference of the Recasting Study, which were drawn up by the European Commission (Invitation to tender Mark/2005/08/D), expressly asked for the examination of, among other issues, the need for a term extension and the issue of co-written musical works. The Impact Assessment that supposedly underlies the Commission’s proposal also ignores the Recasting Study, except for a single mention in footnote 51, which quotes our study out of context. Similarly, the Green Paper on Copyright in the Knowledge Economy, that covers much of the terrain explored in both our studies, once again, ignores the critical findings of our research.

As you are certainly aware, one of the aims of the ‘Better Regulation’ policy that is part of the Lisbon agenda is to increase the transparency of the EU legislative process. By wilfully ignoring scientific analysis and evidence that was made available to the Commission upon its own initiative, the Commission’s recent Intellectual Property package does not live up to this ambition. Indeed, the Commission’s obscuration of the IViR studies and its failure to confront the critical arguments made therein seem to reveal an intention to mislead the Council and the Parliament, as well as the citizens of the European Union.

In doing so the Commission reinforces the suspicion, already widely held by the public at large, that its policies are less the product of a rational decision-making process than of lobbying by stakeholders. This is troublesome not only in the light of the current crisis of faith as regards the European lawmaking institutions, but also – and particularly so – in view of European citizens’ increasingly critical attitudes towards intellectual property law.

Efforts to stop copyright term extension has been great outside of scholarly study. As we reported early on this year, there is a petition citizens of Europe can sign that argues against copyright term extension. The petition, known as sound Copyright, was launched by the EFF and Open Rights Group. The petition, aso of right now, has nearly 14,000 signatures.

Copyright term extension is a particularly sensitive issue in Britain. It was only earlier this year that a British MP had to stop the term extension in Britain to prevent it from being extended.

In contrast, the idea of copyright term extension has been quite dormant in North America. The last time copyright term extension was brought up in the US was when the Copyright Office commented, “We’ve certainly lengthened the term [of copyright] perhaps — I won’t even say perhaps — too long a term. I think it is too long. I think that was probably a big mistake, but one that Congress can make.”

In Canada, the subject of the length of copyright was, in a big way, brought up last year in the IMSLP and Universal Edition story where public domain works, by Canadian standards were involved with the term not yet up in the originating country. Howard Knopf commented on the case, “If C&D letters like this catch on, Canada will have to accede to the highest (sic – lowest?) common denominator of mindless copyright extensions – which currently is that of Mexico. The latter has irrationally extended its copyright term to life + 100 years. Talk about being nice to the USA!”

Many experts in the field of intellectual property have long argued against the extension of copyright. While the debate may be relatively dormant in some countries, the debate is alive and well in Europe. It seems that pushing for copyright term extension in Britain was stopped, but the backdoor to push such laws are being brought forth through the European Commission. It’s reminiscent of a comment made by Cory Doctorow a few years back where he said (paraphrased), ‘if mommy says ‘no’, go ask daddy.’ At the time, he was referring to copyright lobbyists going to the world Intellectual Property Organization to push for even more restrictive copyright laws when Congress in the US, for the few times they do, refuse to go along with the copyright industry’s demands. While it may be a different issue, the move is quite similar in this case as well.

Meanwhile, the copyright industry has argued that if copyright isn’t extended, then artists like ‘The Beatles’ will not have retirement money. Exactly how much constitutes “retirement money” for The Beatles is unclear, but apparently, selling 545 million records worldwide by 1972 isn’t enough for retirement according to the recording industry.

The movement to extend the term of copyright isn’t over yet, but it has already been dealt several blows. It isn’t too hard to imagine that there will be more blows in the future as well.

Drew Wilson on Twitter: @icecube85 and Google+.

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