Copyright term extension

There is currently a private member’s Bill in the UK Parliament which aims to extend copyright on sound recordings beyond 50 years. Hopefully it isn’t too likely to pass, but I thought I should do something. It was proposed by Pete Wishart MP, an SNP guy.

The letter I just send to my MP via WriteToThem.com is quoted after the break. Feel free to use it as food-for-thought if you want to write a letter yourself, but bear in mind that boilerplate letters get binned. So copying from mine – although not something I’d be against so long as you link to or acknowledge me – is perhaps not a good strategy.

I should have perhaps made more clear in the letter that I was referring to sound recording copyright terms only.

Happy reading…

Dear Tom Harris,
I write in connection with the proposed Sound Recordings (Copyright Term Extension) Bill 2007-08 proposed by Pete Wishart MP, which is due to receive its second hearing on the 7th March. I would kindly request that you attend Parliament on said day and vote against the passage of this Bill.

As I am sure you will be aware, the current copyright term for sound recordings stands at fifty years. The Bill proposes to extend this.

Although scant information is available with regard to this particular Bill, let me outline two common arguments for copyright extension, and why they are wrong: firstly, that it would bring the UK period into line with that of the U.S. or that recently proposed for the E.U., and secondly that it would support musical artists who have successful recordings early in their career. I will also add that there is an additional argument against extension: the technological realities of our age.

Let me say at the outset that copyright constitutes the granting of a monopoly on distribution, and so the onus of justifying an expansion of that monopoly is on those who seek to benefit from it – something rights-holders organisations have failed to do. However, I feel it is important to make the case for the status quo perfectly clear, lest the sheer lobbying power of organised interests in favour of extension should drown out their weak arguments.

The UK already has some of the strongest copyright laws in the world: we recognise many forms of copyright infringement as a criminal offences, where nearly no other state does. We have fewer exemptions than many other states for the purposes of private copying and format-shifting. We have no blanket educational exemptions. And the ‘public domain’ in the UK is severely limited by the fact that it consists only of works whose copyright term has expired, and those exempt from copyright, since it is not legally possible to dedicate a copyrighted work to the public domain.

The benefit of moving to a copyright term in line with the United States, or the 95-year term proposed by Internal Market Commissioner McCreevy recently [1], is hard to identify. I’m sure you would agree that effectively perpetual copyrights would defeat the purpose of the law. One of the main arguments of the Eldred vs. Ashcroft case in the United States Supreme Court in 2002 brought by Professor Lawrence Lessig was that ‘life plus N’ arrangements amounted to perpetual copyright, and therefore distorted its purpose. It may well be that a sound recording copyright longer than fifty years in this country would also amount to a perpetual copyright in practice. In the UK we do not have a constitutional restriction on the duration of copyrights, as the United States does in the form of the ‘limited times’ purposive statement in the U.S. Constitution’s Copyright Clause. That makes it all the more important to establish clear limits in law and stick to them.

We have already satisfied all international requirements on copyright, such as those introduced by the WTO TRIPS agreement, the WIPO Copyright Treaty and the European Union Copyright Directive. Pre-empting any possible increase in copyright term at the E.U. level by passing this Bill first serves no purpose other than wasting Parliamentary time given that implementing legislation would most likely be required after an E.U. change anyway.

Regardless of the actual number of years decided upon for copyright terms, retrospective extensions such as that which appear to be proposed in the Bill are a corruption of the social bargain of copyright. What author, I ask you, having created a sound recording in, for example, 1959, would be more inclined to ‘produce’ that same work if this Bill were passed? Copyright’s purpose is to stimulate the creation of new works, and applying extensions to works already created completely flies in the face of this purpose. We cannot induce the creation of works which have already been created. The precedent of changing – either up or down – the copyright term of existing works also reduces confidence in the system. It also creates administrative complexity for users and producers in a system which is already about as transparent as mud.

There is also no economic case for extension of the copyright period, a fact which the Government acknowledged in its response [2] to the Culture, Media and Sport Select Committee Report into New Media and the Creative Industries in July last year. Citing the Gowers review of intellectual property, the Government reminded the Committee that the current term of 50 years compensated artists adequately and so should be maintained [3]. Musical artists would not benefit significantly from a (to take an example) 95-year term, while the cost to consumers in terms of the loss of copyright-expired works to the bit-locker of copyright can scarcely be measured in pounds and pence. Some estimates point to the economically optimum copyright term being around 14 years [4] – which I am inclined to see as more reasonable.

The failure of copyright holders to capitalise on their works within the copyright term is quite simply not the state’s problem. Copyright is not a pension scheme, but a social compromise with the purpose of driving creativity and innovation.

There is also a strong technological case for rejecting any extension. The changes seen in the last ten years alone due to mass copying, remix culture, the troubles of the music industry, the peer-to-peer networks and the piracy question should make it clear that technology changes the paradigm in which copyright law exists. Changes in network technology have made copyright harder to enforce, and forced a debate about how far copyright privileges should extend. Culture is being created, shared and remixed exponentially faster than even the framers of the 1988 Copyright and Patents Act could have imagined, and law needs to attempt to normalise and legalise formally infringing activities which are seen by many people to be perfectly reasonable, such as sampling and remixing, and translating existing works for non-commercial purposes. I profoundly hope that the current consultations on copyright will deliver such change.

The troubles of some rights-holders in the music industry due to ‘piracy’ are not due to a lack of legal instruments to deal with enforcement. On the contrary, the legal situation I have outlined should make clear that very many tools are available to rights-holders, and that their rights extend very far indeed. The music industry’s current troubles are an economic problem caused by a product which has become devalued and harder to package due to technological and social changes. There is no case for government intervention here, and the current proposal in this Bill sounds a lot like and attempt at shoring up EMI Records for no particular public purpose.

As I have explained, our options are further shaped by changing technological realities. Having law which does not reflect these is not simply a bad idea. It’s not an option.

I would urge you to consider rejecting the current Bill, and to consider measures aimed at copyright liberalisation in light of the points I have identified.

Yours sincerely,

GW

Please note that I will post a formatted version of this letter on my personal blog, however any responses you send will not be published unless you allow otherwise. The blog is at:
http://www.earthmostlyharmess.net

[1] http://business.timesonline.co.uk/tol/business/industry_sectors/media/article3372115.ece

[2] http://www.culture.gov.uk/NR/rdonlyres/3E8E36E8-3B56-4219-89B2-0623C0AA8AF3/0/375268_GovResponse.pdf

[3] http://news.bbc.co.uk/2/hi/entertainment/6186436.stm

[4] http://www.rufuspollock.org/economics/papers/optimal_copyright.pdf