EU Public Affairs Monitor - 30/12/08

Music copyright extension - strings attached: Sort yourselves out, warn Burnham and McCreevy 12th December 2008
Culture Minister Andy Burnham gave clear backing to extending the copyright term for sound recordings yesterday - but called on the music business to make sure it benefits musicians, not industry fatcats.

"We want the industry to come back with good, workable ideas as to how a proposal on copyright extension might be framed that directly and predominantly benefits performers – both session and featured musicians," Burnham said." [TheRegister]

UK ignores logic, backs 20-year music copyright extension December 12, 2008
"After a UK government-led commission said that the current 50-year term for musical copyrights was fine, and the government last year publicly agreed that there was no need to extend the term, culture minister Andy Burnham yesterday made the logical follow-up announcement that yes, the government would now push for a 20-year extension on copyright. Turns out, it's the moral thing to do.

Actually, by framing the issue as a "moral case," Burnham gets to sidestep the entire issue of logic. Critics have already begun to charge that he is ignoring actual evidence and the well-regarded conclusions of the Gowers Report, not to mention previous government policy. But when the issue becomes a moral one and the livelihood of aging performers is at stake, it's suddenly easier to avoid cost/benefit analysis. Doing the right thing isn't always logical or economical." [ArsTechnica]

Are Performers A Special Case? 23rd December
"While almost every serious commentator in the field of contemporary copyright law takes the view that no case has been established for the extension of copyright term in respect of sound recordings, the case for the extension of the protection term enjoyed by performers themselves has at least one doughty advocate.

IPKat reader and copyright specialist Professor Amanda J Harcourt writes:

"While Andrew Gowers' article (Copyright Extension is Out of Tune with Reality) makes a number of useful and pithy points, it does not fairly, in my view, state the case for the performer.

While the record companies in the 1990s indubitably "missed the boat" when attempting to debate and adjust their commercial practices to accommodate the developments of the internet - and now are suffering the consequences - there are moral arguments surrounding this new development. The songwriter and performer occupy the only moral high ground in the economic environment that is the music industry. This economic model of copyright has been taken to extreme by record companies. Guy Hands's early pronouncements about executive and administrative waste soon after his purchase of EMI were on point, but an understanding of the way artists are contracted by record companies demonstrates that those at the bottom of the royalty food chain - in this case the artist - have reasons for moral outrage." [IP Kitten]

Thomas on Copyright Reform:An Injudicious Threat to Consumers and Artists
"Recently, the Court in Capitol Records, Inc. v. Thomas vacated a $222,000 verdict awarded by a jury of the peers of Defendant Jammie Thomas.1 The Court held that it committed a “manifest error of law” by instructing the jury that U.S. law gives copyright owners the “making-available right” required by nine international agreements supposedly implemented by U.S. law. But Thomas did not confine itself to an analysis of whether U.S. law provides a making-available right.

After adjudicating the motion to vacate the jury verdict, the Court appended a gratuitous final section—Section K—that used Thomas as a platform to attack the wisdom of both the jury and Congress. Section K, by casting off judicial conventions, by opining on jury questions, and by mischaracterizing the conduct of a party to a pending case—tried to present the Defendant as a poster child for an ill-conceived advisory opinion on copyright reform. In Section K, looting thus became a nonprofit avocation and deterring deceit became “oppressive.” Worse yet, these characterizations supported “reforms” that would only encourage piracy, endanger consumers, and further undermine the vitality of copyrights." [PFF]

Triennial DMCA Review at US Copyright Office December 30th, 2008
"Has it been three years already? The US Copyright Office is again hearing arguments for exceptions for, as the December 29 Federal Register notice puts it, “certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The purpose of this rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention.”

In other words, when is OK to ignore the Digital Millennium Copyright Act and hack DRM? (You’ll find information on how to participate in this democratic process at the end of this post.)" [CopyrightAlliance]

EU Public Affairs Monitor - 19/12/08

Burnham puts moral case for term extension
“Culture secretary Andy Burnham has said there has “always been” a moral case at the heart of copyright law.

Defending the Government’s decision last week to extend copyright term from 50 to 70 years, Burnham writes “If someone produces exceptional work in their 20s that is still being listened to 50 years later, it is right that their earnings from it are not suddenly cut off when they are in their 70s. The argument here is that the person who creates a work should be able to enjoy the value of that for the duration of his or her natural life.”

Responding to an article in the Financial Times by Gowers Review author Andrew Gowers, Burnham also said it is a false argument to compare musicians with other professions such as sportspeople. “No one is going to profit from someone winning the 100 metres decades on from that victory, but, in a digital world…music continues to generate revenues far into the future.”

The culture secretary puts the case that a vegan rock star should not have to put up with seeing their music used to promote burgers and asks why should performers have to watch others profiting from their talent and creativity? “So there is a very clear moral case to extend copyright,” he writes.” [MusicWeek]

Andy Burnham: A practical and moral case for extending copyright
“The length of time that sound recordings remain in copyright is a controversial subject and for the past couple of years a debate has raged on whether to extend it from the present 50 years.

Andrew Gowers - who led the Gowers review of intellectual property - suggested it should remain at 50 years but that we should review it in the light of European considerations. Charlie McCreevy, European Union commissioner, subsequently came up with a different view: that it be extended to 95 years.

In the light of that, and in view of Mr McCreevy's argument about there being a moral case for extending it, the government has been looking at the issue again. John Denham and I, as the ministers responsible, felt that 95 years would be disproportionately long. But we do feel that there is a case for extending the term to a period of something like 70 years.” [FT]

Reaction: Any extension to copyright must look forward only
Letter from Mr Andrew Gowers, Head of External Relations, London Business School.

“Sir, Andy Burnham writes (“A practical and moral case for extending copyright”, December 16) that the government is looking for a “workable compromise” on copyright that will balance the interests of musicians, the music business, and purchasers and users of music. Understanding the enormous political pressure he and ministerial colleagues have been under on this issue, may I make a constructive suggestion?

If the government must consider extending copyright protection as Mr Burnham proposes, I suggest it does so on a forward-looking basis only. That way, ministers can address musicians’ concerns and marginally enhance incentives for creation, without creating an unwarranted windfall for music companies for past productions or breaching existing implicit contracts with the public.

This approach would also have the virtue of consistency, since the government did accept without question the recommendation of my review that “the term and scope of protection for IP rights should not be altered retrospectively”.” [FT]

Reaction: Look at it from engineer’s perspective
Letter from Mr Anthony Stansfield.

“Sir, Andy Burnham (December 16) argues for an extension of copyright to provide musicians with a continuing source of income long into their retirement, perhaps arising from work that they did in their 20s. Let me provide an alternative perspective.
I am an engineer. My creative work is protected by the patent system rather than by copyright. This provides protection for 20 years – not 50, or 70, and certainly not 95 years. It is possible that my work, or that of any other engineer, could still be in use after the expiry of this period, but it is very unlikely that royalties from inventions made even in my 40s will be directly contributing to my retirement income.
Mr Burnham asks: “Why should performers have to watch others profiting from their talent and creativity?” I would suggest that the answer for them is the same as it is for me – the intellectual property system provides a limited period for us to profit directly from our creative work, after which it becomes publicly available for others to build on, and develop in ways that we haven’t thought of.
We may be able to “enjoy the [monetary] value” for only a limited period, but can enjoy the ongoing impact of our work indefinitely.” [FT]

EU Public Affairs Monitor - 15/12/08

UK plays term numbers game
"A 70-year copyright term is a possibility as UK offers alternative to EC’s 95 years
Europe’s delicately-balanced debate on copyright term is about to be blown out of the water, with the UK Government now poised to tell member states that it is prepared to see an extension to 70 years.

The UK, one of Europe’s biggest music producers, has steadfastly opposed the Charlie McCreevy-sponsored Directive to increase copyright term. While Germany, France and other states have broadly supported the Internal Markets Commissioner’s proposal to extend copyright term from 50 to 95 years, the UK has stuck to the findings of the 2006 Gowers Review, which did not recommend extension.

However, that position – and Gowers’ – was blown apart last Thursday when Culture Secretary Andy Burnham told a conference that he is now working with Department for Innovation Universities and Skills Secretary of state John Denham to “consider the arguments for an extension of copyright term for performers from the current 50 years. An extension to match more closely a performer’s expected lifetime, perhaps something like 70 years”. Senior executives now expect the Government to formally tell the European Council about this monumental U-turn early in the New Year. And that will undoubtedly radically shift the way the debate is progressing." [MusicWeek]

Copyright extension is out of tune with reality
"Politicians often do and say silly things when they come into contact with celebrities.
So it was last Thursday when a star-struck Andy Burnham, Britain's secretary of state for Culture, Media and Sport, showed up for a speech and photo-opportunity with the former lead singer of the Undertones, a punk-pop combo of the 1970s. In addition to the usual pleasantries about Britain's creative industries, Mr Burnham set out a novel argument about the law of copyright protecting musicians' work.

There was, he said, "a moral case" for performers - who often do their best recorded work in their 20s and 30s - to benefit from it throughout their lifetime. The government would therefore consider extending copyright for recordings to 70 years from the present 50." [FT]

Copyright law 'could be extended'
"Culture minister Andy Burnham has said the government has changed its mind on allowing performers to make money from their music for 70 years. Performers currently lose the copyright to their recordings after 50 years. "It's only right that someone who created or contributed to something of real value gets to benefit for the full course of their life," he said. Sir Cliff Richard and Roger Daltrey were among those who have campaigned for copyright to be extended." [BBC]

UK ignores logic, backs 20-year music copyright extension
"After a UK government-led commission said that the current 50-year term for musical copyrights was fine, and the government last year publicly agreed that there was no need to extend the term, culture minister Andy Burnham yesterday made the logical follow-up announcement that yes, the government would now push for a 20-year extension on copyright. Turns out, it's the moral thing to do." [ArsTechnica]