New Rights Proposals

[Lazz]

You may have noticed through the confused haze of popular news reporting that EU Commissioner Charlie McCreevy, the union's internal market chief, has recommended the introduction of new rules to extend the rights of singers and musicians in their recorded performances from 50 years to 95 years.

Anyone have any thoughts on this proposal ?

[Steve]

I think it's right and proper that it should be extended. Lot's of musos out there still slogging away after 50 years.

[Lazz]

It'll probably succeed, I reckon - if only to achieve harmonisation with current US law.

But I am personally unconvinced.

For a start - the issues seem to have been quite wildly misrepresented in the media.

We aren't actually talking about copyright of original creative works here but rather the considerably lesser rights in the performance of said works.

Neither are we really talking about musos stll slogging away after 50 years.

Charlie himself batted on somewhat disingenuously about his concern for performers' old-age pensions.

But who are we talking about in reality ?

In large part it's people who have had hits and made big money already - and now they want more.

Cliff Richard, for example, never wrote any of the songs for which he became known as a performer.

Why is he in such a panic about his pension ?

Isn't he sorted already ?

He already got paid damn well during his active career when he was selling bundles of shellac and vinyl.

What's going on here really ?

Seems to set a fearful precedent for other performance arenas, too.

What - are Hollywood stars who earn millions for acting in movies to get paid over and over again when the product is re-issued on DVD ?

Or how about those TV re-runs ?

I am very suspicious that someone somewhere hasn't really thought things through fully.

And that they are succumbing to pressure and argument for reasons that are not necessarily logical or otherwise fully persuasive.

[thelevellers]

I have to say that I would be immediately suspicious of such things, even if that is mostly because of the depth to which I'm in to the whole open source community... But like Lazz says, laws like this have to be carefully thought through, because there is a very real danger of this not affecting small time musicians (such as the people on here) much at all, and just adding to the enormous amount of money already in the famous/big time musicians pockets...

I'm guessing that the 'recorded performances' means both record sales things like live DVDs etc?! Cause then there's even more ambiguitis in there and my brain starts to leak out of my ears...

I think I'll stop here, I'm nopt sure if I've made any point, let alone my own, but my brain is telling me to stop as I think I might be getting ill *cough, splutter*

Rohan

[Lazz]

I really don't see it doing much to benefit strugling writers. .....

Let's say a Lennon song, which has already made a small fortune, now has an expired copyright....

Is it really right that a song, which you created from nothing, at some point ceases to belong to you because of the expiration of legal copyright....

Wrong end of the stick obstinately being grasped here with both hands, Tunesmith – and an example of the results of the sort of muddled foggy media misrepresentation of the issues that I was bitching about.

What we are NOT talking about here is anything remotely to do with the copyright of writers - oh no.

Listen - let me try to spell out what the problem is more carefully - it sometimes seems to get pretty complicated - especially as there are different sorts of copyright that reside in different things.

On the one hand we have the perfectly reasonable and convincing and legitimate copyright in the creation of an original work , the clear property of the person who created it, the sort of copyright that everyone takes for granted is fair and right and which everyone also seems generally to have taken for granted is the one being discussed in the current debate – but it isn’t.

On the other hand we have another sort of copyright whereby if you make record of a note written by someone else (me, for instance) then you have copyright in your own performance of that note – and though this might seem a tad specious and vaguely philosophical it means that, even if they happen to already own the rights to that tune you’re playing, no-one can record and reproduce your performance of it without your assent – because you own your own performance.

And THAT is the bit of copyright protection/entitlement that is being suggested gets tinkered with – the rights in your own performance.

Currently, the law in the UK maintains those rights in your own performance for 50 years.

The UK’s Gower Review on intellectual property last year recommended that limit be retained.

The recommendation of the EU commissioner Charlie McCreevy, however, is to extend the term to 95 years.

He said:

"I have not seen a convincing reason why a composer of music should benefit from a term of copyright which extends to the composer's life and 70 years beyond, while the performer should only enjoy 50 years, often not even covering his lifetime. It is the performer who gives life to the composition and while most of us have no idea who wrote our favourite song - we can usually name the performer."

While I agree with the bit about ‘most of us’ being able to remember the singer but not the songwriter – (once upon a time on these boards I volunteered one of my favourite songs as being Joe Roposo’s excellent ‘Being Green’… and some bright spark came back that they actually preferred it by Kermit) – I am decidedly unconvinced by Charlie’s argument and his underlying reasoning that there is any creative equity between someone writing the stuff in the first place and getting to perform it later.

I understand why Cliff Richard is in favour of the idea, though: his first single (‘Move It’ b/w ‘Schoolboy Crush’) was released in August 1958 so in 6 months the clock runs out on his 50 years. He is keen to keep collecting. As are all those other poor deprived souls who took out expensive full-page ads in the UK press pushing for an extension and against Gower. But personally I don’t like it – especially the idea of framing it so emotionally in terms of a ‘pensions’ issue.

There are real working people with real pensions issues.

I don't think this counts at all.

Edited February 21, 2008 by Lazz

[Steve]

I still think it should be so. Not overly sure there should be a time limit. I would rather see the limit be until the demise of the individual. I don't like this inference that somebody has too much money, and we should deprive them of future earnings. All things are relative. I don't say this as somebody who will benefit in any way from this legislation, much to the contrary! My pension provision is nil and I daresay I will be working until I can no longer work, or I die. But I don't think you can take something from somebody because of a date! If that's the case, why 50 years? Lets screw the bastards now and cut it down to 5 years!

[Lazz]

Hey, sorry to hog this posting, but I did have another question on the subject. Refering back to my last posting, if it is the performer's share of the 50/50 that's in question and those rights are allowed to expire, what happens to the performers half from that point on? Does it shift to the writer/author or does it no longer payed to anyone?

No need to be sorry - good to have a discussion.

My responses to your previous post might help you rip that question up or rephrase it somehow.

Here we go

Sorry Lazz, my bad! You're absolutely right about the general misunderstanding about what is actually being debated…… never actually heard anyone get into depth about the particulars … Even the local DJ's around here discuss the topic as if it's the general copyright that's in question.

Yeah – it’s a very strange circumstance, this one. I’ve been following the commentary also – and even in those more journalistically ‘responsible’ parts of the british press spectrum they have steadfastly failed to make any clarifying distinctions – I have written to some of them, drawing the misrepresentations to their attention, received no response and seen no corrections. I embrace no organised conspiracy theories about this. But could make a case if I wanted to. I think they are maybe just too busy with other news priorities to worry about getting everything right. And after all, amongst all the other important stuff on the daily agenda, this is a pretty inconsequential issue.

it sounds like the UK writers portion of the copyright is identical to the American version

I want to answer ‘yes’ immediately but suspect there could be some ambiguity still in what we’re talking about.

Yes - copyright is basically identical in that every country signed on to the World Trade Organisation and GATT and TRIPS has agreed to be governed by the Berne convention. (I wrote more explanation here if you are interested.)

The ambiguity problem pops up here:

in a case where a song was written by one individual & then performed by someone else with the usual 50/50 split of royalties arrangement…

That is not normal at all, as far as I know.

I mean, I have never heard of this sort of arrangement being accepted as normal – ‘though a royalty share can work as a strategic trade-off: I know of writers who signed over a proportion of their royalties to somebody or other in order to get a song recorded or have added that somebody or other’s name to the writers’ credits for the same reason – but that somebody or other is not usually the artist (although I could offer a few libellous examples where it is).

But the writer/writers start out owning outright 100% of their copyright even though in order to do business they have to start trading some of those rights away. And the only place any kind of 50/50 deal is considered normal is in publishing. If you have a publisher signed on to push your case it is an accepted standard that, in exchange for all the work they do, they keep half the proceeds while the writer/writers get the other half.

But no – a copyright split between writer and performer is not normal.

So if I understand you correctly, it's just the performance portion that's being debated?

Almost - it’s the rights in the specific performance contained in a recording.

Plus – the argument is about a specific bit of income stream generated by those rights.

The recording session involves the first bit of trade with these particular rights

When a muso for hire or an artist under contract goes into the studio to record, they get paid to do that. They generally get paid under industry agreed terms and rates. Sometimes guys will do it even cheaper. But, whichever way they do it, they also have to sign a waiver for the label that says in effect that the rights they would otherwise have in their own performance of the song, in consideration of the cheque they get and in agreed exchange for that payment, has now become the property of the record label. The record label is not legally able to use the recording without such an agreement – even though they may own the master tapes, they don’t own the rights in the individual performances and can’t do anything with the recording until those rights have been officially transferred.

That's always seemed fair enough to me - the musos get paid for doing what they do, so does the studio and so does the arranger etcetera, and the label ends up owning the rights (because of everyone's explicit agreement) and can then do what they do - that is, manufacture, reproduce and disseminate, distribute, promote and sell. Given all the money the operation has cost them so far, the label naturally hopes to make a profit eventually. They don't always succeed: It's a risky business.

But it’s purely the second bit of trade regarding these rights that’s the issue here, it seems to me.

Now remember please – despite me being christened legal eagle by the songstuff fairy, I am truly no properly accredited expert, just an ordinary nosy geezer driven be necessity to get a reasonable working comprehension of vital survival aspects of the law governing the crap I get involved in – so there’s bound to be someone who knows better than me in aspects of substantive detail - but in terms of the present limits to my understanding this is what is happening….

Whenever a recording is broadcast or used in film or an advertisement or otherwise commercially, there are fees to be paid to the rights-holders. The composers/publishers get theirs. The label/owners of the recording get theirs. The artists get theirs. What the actual numbers are I couldn’t tell you. I don’t know. Pretty soon I’ll find out.

Anyway…

What appears to be at issue is that the composers/publishers keep on getting theirs for 70 years after their death while, in the EU, the recording artists stop getting theirs 50 years after making the record. (In the US they have 95 years already, so part of this is a push for parity.) And I’m not completely sure what I think about it just yet - but there are a few things have run through my head…

First: there’s a lot of foggy info coming through the media and we’re not being given the straight poop, so it’s hard to make a decision.

Second: the campaign in support of the extension issues from a wealthy and influential lobby of vested interests – so I don’t expect them to be objective and/or unbiased.

Third: this implicit presumption of fundamental equity between authors’ rights and performers’ rights doesn’t quite fly right with me somehow – we have apples and oranges, playwrights and players, composers and musicians – they are very different.

Fourth: like Steve, I have no pension or personal security – so to me it comes across as just a bit mealy-mouthed for a special-interest group to dress up retroactive special-pleading the way they have – and being able to have their line so readily parrotted by an EU commissioner might be indicative of influence.

Fifth: I think the ball has really been kicked into play by the rise of new storage media and personal technology – the Hollywood writers’ strike was an arguments about rights involved through DVD and internet use etcetera – everyone is staking claims to the new territory.

Sixth: I wonder about the precedent this offers for the movie industry, for example – will a Hollywood star who earned big-bucks up-front for a film-gig now claim similar entitlement to a taste each time you rent the DVD ?

Seventh: this is an extra and additional cost that will obviously be passed on to the end-user, not only the renting or buying you and me, that is, but maybe even more significantly to your common or garden non-profit archival institutions like libraries, the British Museum, National Sound Archives, stuff like that – do they suddenly have to pay a new charge for everything they have from over fifty years back ?

I don’t know – but then we haven’t been given any opportunity to hear the arguments, have we ?

[Lazz]

I don't like this inference that somebody has too much money, and we should deprive them of future earnings.

Sorry about that.

But some people definitely do have a lot don’t they ?

And often in obscene amounts.

Is that too much ?

If some guys can only have loads at the expense of the rest of us having less then someone like me can’t necessarily be blamed for noticing. And besides, I’m not suggesting they be deprived of anything. I’m just saying I’m not necessarily a convinced by an argument that they deserve more.

I have an amusing side anecdote here, if you’ll bear with me for a moment’s entertainment:

A old tearaway mate of mine from way back in the local street and dance-hall days, with my encouragement many years later, took himself back into education as a mature student. And so I joined him for a few celebratory beers when he finally graduated. In our company were a couple of his class-mates: one guy who was actually from the landed gentry with an inheritance and a swish pad in the countryside, no apologies, no excuses, nice chap; the other was another Irish immigrant abroad in north London. Paddy kept rounding on the privileged one throughout the evening, demanding constantly to know the source of such good fortune.

“Where did you get it from ?” he insisted, stabbing the air with his finger.

“I inherited it from my father.”

“But where did he get it from ?”

“He inherited it from his father ?”

“But where did he get it from ?”

“He inherited it from his father ?”

“But where … ?”

And so the pursuit across many generations past and perhaps as many glasses of ale until that final significant “But where did he get it from ?” which resulted in the eventual accepting shrug of a reply that “Well, he probably fought for it, I suppose.”

“Right !” roars Paddy triumphant, sliping out of his coat and rolling-up his sleeves with a dramatic flourish “Come on then….”

Aah but we used to make our own entertainment in the old days.

Not saying that pop-stars have inherited their wealth. Just recognising that inequities in pensions, rights, access, concentrations of wealth are a matter of public record and remain largely the result of inheritance. And some people have way too much as a result.

But this isn’t about them.

Neither is it about depriving anyone of their pension.

It is about some people wanting a bigger bite.

Do they deserve it ?

Why and how ?

Who pays ?

[Steve]

Neither is it about depriving anyone of their pension.

It is about some people wanting a bigger bite.

Do they deserve it ?

Why and how ?

Who pays ?

I think it's unfortunate that Cliff mentioned 'pensions' in this context. It has nothing to do with anybodies pension. And I seriously doubt anybody would be too worried about Cliffs' retirement predicament! What I really find distasteful is this assumption that an individual has enough money! I'm not talking about Cliff Richard, I think he's just fighting his corner, and trying to protect his own interests. But isn't that what we all do? I think we're getting onto some very ambiguous ground here. If we want to get into people with too much money, lets take a swipe at Bill Gates, worth about 56 billion dollars. or Warren Buffet, 52 billion dollars. Does nobody think that's enough?

[Lazz]

I think it's unfortunate that Cliff mentioned 'pensions' in this context.

Actually, I am not sure whether he ever did that.

I mean, he might have done I suppose, but I missed it if he did.

The guy I have on record as bleating on with the pensions analogy on their behalf is EU commissioner Charlie McCreevy.

The reason for my introduction of Sir Cliff's as an example is that he appeared to be at the core of the lobby when I first noticed.

Those full-page ads from a year or so ago displayed loads of other famous signatories besides his and yet I didn't quite understand what the issue really was - save they sought my agreement and support for it.

When I thought I had figured out what was going on, I found that Cliff was maybe a perfect illustration because over the next few years his recorded catalogue was going to start creeping past that 50 year mark. The othe signatories to the lobby (if I am remembering correctly over such a distance) were also singers who hadn't written their own hits. And I found it tempting to view their position as a perhaps little bit of sour-grapes; I imagined them to be facing the imminent and inevitable drying-up of some income from their rights, while maybe one or two of their old band-mates, who were also song-writers, were going to continue receiving royalties, and so now, at this late date forty or fifty years after implicitly agreeing the extant rights structure, thay began to raise cries of 'foul' and 'unfair'. I also thought that the Gower report had kicked the whole shebang effectively into touch and didn't realise the ball had been passed along to the EU until news reached me of McCreevy's recommendations.

Anyway, fact is, I am unsure about the merits of the argument.

Hence the question "Do they deserve it ?"

As for the "Why and how ?"...

So far, the only reasons I am aware of being presented in support are the 'pension' red-herring and the assertion that these rights in a recorded performance are comparable to an author's copyright.

Forgive me - but I find both to be verging on the specious.

As to the question "Who pays ?"...

well, maybe this was rhetorical - there seems no reason to doubt that the estra cost will be passed on to the end-user.

I seriously doubt anybody would be too worried about Cliffs' retirement predicament!

Agreed - I also serously doubt whether that concern would extend to the other members of the lobby either - hence, I was unconvinced by the argument.

But then we also agree that "It has nothing to do with anybodies pension" - so that's that out of the way.

I think he's just fighting his corner, and trying to protect his own interests. But isn't that what we all do?

Er.... dunno.

There is a set of arguments that even purely charitable are an expression of self-interest.

But all that stuff seems more the province of university debating chambers with no feet on the ground.

Another answer could be 'no, clearly not' - especially if we recognise that the ability to protect your interests by fighting your corner is a function of access to power.

Another answer could be 'So what ?' - if we accept the lobby as being one bound by self-interest (as I did) doesn't this simply put the lie to their claim that it is all to do with more fairness ?

And doesn't that underline my feeling that it all comes across as a tad mealy-mouthed in consequence ?

Answers on a postcard pleae.

[Steve]

If the 50 year rule is enforced, who gains?

I've only heard reports of this on the radio. I haven't encountered any full page ads, having given up reading 'news' papers during the Falklands war. So I can only comment on what I've heard and Cliff was certainly very vocal about his pension fund dilemma! Poor bastard!

[Lazz]

If the 50 year rule is enforced, who gains?

You mean if nothng changes and the 50 year limit remains ?

Ge - good question.

I guess a production company could pick Cliff's 'Move It' as a track for a laxative TV ad or something and, if they began the broadcast campaign after August this year then they wouldn't have to pay Cliff for use of his voice on the track.

They would still have to pay to licence use from other copyright owners though, so I don't think they would be saving much in the context of overall budget.

But they and others like 'em would be in line to benefit something at least.

Same for movie use - recordings from over 50 years ago will work out a little cheaper.

And if I am right in presuming that rights in recorded performances apply right across all other regular broadcast use, then oldies play-lists devoted to records from over 50 years ago, for example, would come at a lower cost too.

I wonder what the actual objective impact of that might be.... maybe quite minimal - I mean, how many of those shows are there out there ?.

Other companies which licence and re-package old tracks, too - they tend to benefit a wee bit when the content is from over fifty years ago.

Archives and libraries and museums also benefit from usage fees that wither away a little at this date point.

Ultimately and eventually, you and me and other consumers benefit from not having these otherwise extended costs passed on and absorbed into the price we pay.

I can't think of anything else right now....

I've only heard reports of this on the radio. I haven't encountered any full page ads, having given up reading 'news' papers during the Falklands war. So I can only comment on what I've heard and Cliff was certainly very vocal about his pension fund dilemma! Poor bastard!

No radio reports over here amongst what I have heard - only spotty scanty inadequate newspaper coverage that explains little.

I have been looking through the BBC web-site a bit and found nothing useful about it - if you know of anything, please let me know.

The full-page ads were a while back - can't remember exactly, but the campaign preceded Gower.

I would agrree that Cliff using the pension sounds ill-advised.