New EU copyright rules

Subject: New EU copyright rules
From: GUEST,Pavane sans cookie
Date: 13 Sep 11 - 03:07 AM

BBC news

Contains the following note:

And artists will be able to regain the rights to a recording if their label has kept it in a vault and not made it available to the public.

Subject: RE: New EU copyright rules
From: Richard Bridge
Date: 13 Sep 11 - 03:41 AM

The provisions for artists who signed away all rights at recording may be of interest to quite a few "employed band members" and session men, and quite important if the right remains part of a deceased person's estate - but the reversion of copyright in sound recordings if unexploited may lead to an explosion of litigation between members of long defunct bands or their estates.

I don't immediately see how the provisions will enable artistic control eg of uses of recordings in commercials unless the artists had control clauses in their contracts - Abba may have had, but very few others will benefit.

Subject: RE: New EU copyright rules
From: Richard Bridge
Date: 13 Sep 11 - 08:09 AM

The actual directive is here: -

http://ec.europa.eu/internal_market/copyright/docs/term/2011_directive_en.pdf

Subject: RE: New EU copyright rules
From: Richard Bridge
Date: 13 Sep 11 - 10:09 AM

A summary from the IPKat blog - it is for IP specialists and therefreo more accurate than those in the newspapers:

"The IPKat reported last week on renewed moves to extend the term of copyright in performances and sound recordings in the EU. Well, they didn't hang around once they had decided to consider this topic.

At yesterday's Council meeting, the directive was adopted. Interested readers can find the full PDF text here, but if you prefer to receive your copyright law in handy, bite-sized chunks, the main provisions are:

The term of copyright for fixations of performances in sound recordings and for sound recordings themselves is extended from 50 years to 70 years (counted from the date of publication or communication to the public).

"Use it or lose it": If a record producer is not making sufficient quantities of the record available to the public after 50 years, the performers can terminate their assignment to the record producer, which also has the effect of terminating the record producer's copyright in the recording.

Record companies will have to pay 20% of the revenues earned during the extended period into a fund. The money from this fund will be allocated to session musicians who received once-off, non-recurring payments for their performances.

Where a performer is entitled to recurring payments which had been subject to advance payment or other contractually agreed deductions, then during the extended term those deductions will no longer apply.
The underlying rationale for extending the term of copyright is found in recital 5, which says:


"Performers generally start their careers young and the current term of protection of 50 years applicable to fixations of performances often does not protect their performances for their entire lifetime. Therefore, some performers face an income gap at the end of their lifetime. In addition, performers are often unable to rely on their rights to prevent or restrict an objectionable use of their performances that may occur during their lifetime."

Is the term extension truly for the benefit of the performers? The major beneficiaries must be the companies who keep 80 cents of each Euro earned for the next twenty years. The 20 cents that they are required to set aside is the price they had to pay to have their copyright extended, allowing the directive to be presented as a favourable measure.


This claimed rationale - concern for performers in later life - is further undermined when one examines the uneven treatment applied to different types of performers (and different types of recording). The term of protection was left at 50 years for any performer's rights which are not fixed in a phonogram. The term of protection was also left unchanged at 50 years for producers of the first fixation of a film, and for broadcasts.

If the intention is to ensure that performers do not suffer an income gap in later life, why stop with those whose recordings form part of works controlled by music companies? Presumably, our politicians felt that dancers can leap over the income gap, actors can pretend it does not exist, and magicians can simply pull a few quid from a hat whenever they need to.

The Directive also addresses the calculation of term of copyright for combined musical and literary works when in the form of "musical compositions with words" (that's songs to you and me). The Berne Convention - and by extension the law of all EU states - requires that for works of joint authorship, the term of protection is counted from the death of the last surviving author, but different countries apply different criteria as to what constitutes "joint authorship". Currently, in some countries, if the contributions are distinct from one another, there is no joint authorship, while in others, there is always deemed to be joint authorship for a musical composition and accompanying lyrics.

The new Directive requires EU member states to calculate the 70 year copyright term for both the music and lyrics from the date of the death of the last surviving member of the songwriting team (i.e. the last surviving author of the lyrics or composer of the musical composition), provided that both contributions were specifically created for the work in question. There should be no surprise here, as the pattern of all copyright harmonisation in the EU has been to force countries with more liberal regimes and shorter terms to move into line with the countries having longer terms and stronger regimes."

Subject: RE: New EU copyright rules
From: Paul Burke
Date: 13 Sep 11 - 12:53 PM

That could mean a derivative piece of art (all art is derivative) being protected for 150 years, if the youngest co- author is 20, and lives to be 100. Meanwhile the IP of someone whose intellectual effort leads to something directly useful, perhaps enhancing or even saving the lives of millions, is protected for 25 years from the date of the patent. And it can easily take 10 years for revenues to start coming in.

That all human intellectual effort is derivative should be recognised when IP is protected, and the term of protection set at enough to reward the author, but not to bankroll corporations for generations.

Subject: RE: New EU copyright rules
From: Richard Bridge
Date: 13 Sep 11 - 03:06 PM

This particular directive does not apply to art.

Subject: RE: New EU copyright rules
From: Paul Burke
Date: 13 Sep 11 - 04:45 PM

Music ain't art?

Perhaps not mine.

Subject: RE: New EU copyright rules
From: Richard Bridge
Date: 13 Sep 11 - 05:27 PM

Artistic works are a different category of copyright work.

Subject: RE: New EU copyright rules
From: pavane
Date: 13 Sep 11 - 05:38 PM

I was thinking of those folk artists whose works are currently locked away in the vaults of, for example, Celtic Music.

Subject: RE: New EU copyright rules
From: Richard Bridge
Date: 13 Sep 11 - 09:01 PM

Yes, it seems likely that they may benefit

Subject: RE: New EU copyright rules
From: Paul Burke
Date: 14 Sep 11 - 01:54 AM

Let's try again Richard.

That could mean a derivative piece of musical performance (all musical performance is derivative) being protected for 150 years, if the youngest co- author is 20, and lives to be 100. Meanwhile the IP of someone whose intellectual effort leads to something directly useful, perhaps enhancing or even saving the lives of millions, is protected for 25 years from the date of the patent. And it can easily take 10 years for revenues to start coming in.

That all human intellectual effort is derivative should be recognised when IP is protected, and the term of protection set at enough to reward the author, but not to bankroll corporations for generations.

And even under these rules, Nic Jones' (for example) recordings won't revert to him until 2020-2030, assuming the masters still exist then.

Subject: RE: New EU copyright rules
From: Richard Bridge
Date: 14 Sep 11 - 03:55 AM

No, you are confused.

A patent confers a monopoly. You can infringe one without copying. Likewise a trade mark or a registered design.

A copyright or a design right protect only against copying. That which is original cannot infringe.

Database right protects against "unfair extraction".

Copyright (UK) protects literary dramatic musical or artistic works, films, certain transmissions or broadcasts (the distinction has evolved), typographical arrangements and sound recordings.

There is no copyright in a performance. There may well be "performers' rights" or "recording rights".


For the purposes of copyright law it is certainly not the case that "all performance is derivative", and indeed the UK does not use the term "derivative work" as the USA does. You seem to use the term "derivative" as denigratory in some sense, but the purpose is unclear as you go on rightly to recognise that if all music or musical performance is derivative (I'm not quite clear how you fit "sound recording" in there) so is "all human intellectual effort", which may or may not be true in any sensible sense. Certainly science (the language of the inventor) can only build upon earlier science.


Yes, however, use it or lose it should in my humble opinion have no built in 50 year time limit. Moreover I have not yet seen how physical possession of the masters is provided for in the directive.

Subject: RE: New EU copyright rules
From: Paul Burke
Date: 14 Sep 11 - 01:07 PM

"You seem to use the term "derivative" as denigratory in some sense"

Not at all. Just recognition that we stand on the shoulders, sometimes of giants, and sometimes of just ordinary folks. But nobody has an idea out of the blue, without antecedent. That's what confused Rupert Sheldrake, when he thought that some mystical process made several people come up with an idea almost simultaneously. He didn't recognise that the ground is prepared by what's already there. As true in music, as in painting, as in engineering, and politics too.