ADBS
L'association des professionnels de l'information
et de la documentation

EU's Internal Market Commissioner Charles McCreevy has proposed an extension of the copyright protection of sound recordings from the present 50 years to 95 years, to give performers equal protection with composers. Unless the term of protection is extended, many European performers will soon lose income from recordings they made in the late 1950s and the early 1960s, says McCreevy. A detailed proposal has not yet been published, but as the Commissioner has announced that he aims to move quickly, the undersigned wish to take a stand on the proposal on the basis of information currently available.

The copyright protection of performers cannot be equated with the protection of composers and other authors. Most compositions have only one or two authors; the term of protection is counted from the death of the longest-living author. Rights in sound recordings belong jointly to the record company and performers participating in recordings, sometimes more than a hundred of them. Companies do not have a year of death. Extending the term of protection to 95 years would inevitably lead to situations where some sound recordings would be protected longer than the works recorded, resulting in new demands for extended protection.

It is true that a small number of living performers will lose income from the broadcasting of their recordings when the present term expires. However, in Finland, record producers and performing artists did not have any copyright protection until 1961. For a long time, the term of protection was 25 years. This state of affairs was well known to all parties, when recordings were made. The protection of performers and producers has already been extended retroactively several times; no other professional group has ever received such special treatment.

Commissioner McCreevy has not published any estimates of the additional income which performers would gain from the extension. 50-year old records are only broadcast infrequently, 95-year old records almost never. For most performers and their estates, the extra income would only be a few euros annually, if anything. The damage caused by the extension would be much larger than the benefits.

The extension of the copyright term has previously been proposed in the EU on the basis of the competitiveness of the European recording industry. It was claimed that European record industry would be less competitive than the US industry, which already has 95-year protection. In Britain, the Gowers report convincingly proved that such claims were false. If anything, the shorter term makes European record industry more competitive.

In the United States, there have been studies of the damage caused by excessively long protection. In practice record companies have not been interested in marketing recordings which are more than 50 years old, because demand for them is marginal. Neither have they been willing to license them to other companies. As a result, in the USA most recordings which are more than 50 years old are available for educational and research purposes only as European reissues. If the proposed extension goes through, the availability of historical recordings will dramatically decrease in Europe, too.

The extension of the term of protection would not only apply to commercially published recordings. It would apply to all sound recordings, including broadcasts, private recordings and recordings made for research purposes. Without the permission of the rights owners, protected recordings cannot be used for any purposes. For instance, if an archive receives a home recording made in the 1950s, it would not be able to make a digital preservation copy without the permission of the rights owners, who may be unknown.

The extension of the term of copyright would eventually create a huge orphan works problem. Ninety-year old recordings could not be used for any purpose without the permission of the rights owners, but in many cases it would be impossible to identify them. In the course of time, many record companies will change owners, cease operations or go bankrupt. Even the states where they once operated may cease to exist. The performers die and the rights pass to second and third generations. Because most recordings have little economic value after such a long period, the changes will not be documented anywhere.

The extension of the term of copyright would endanger the pioneering work of the Finnish National Library in making historical recordings accessible to the public. The National Library is legally responsible for the preservation of national cultural heritage and providing related information services. The National Library has digitised in the RAITA database a major part of public domain Finnish sound recordings. The proposed extension would make this task much more difficult. If the extension is made retroactively, most of the materials would have to be closed for the public.

In the United Nations Declaration of Human Rights, copyright and access are seen as two rights of equal importance. The extension will result in unreasonable restrictions to the freedom of information, unless proper balances are created. The harmful consequences of the extension to libraries and archives are well documented, while the there are no studies of the alleged benefits. As the Gowers report noted, it will be possible to extend the term later on, if this proves necessary, but it will be very difficult to shorten it, if it has proven excessive.