On the surface this is quite similar to the Copyright Term Extension Act passed into US law in the late 1990s. But a closer look reveals some interesting differences that at least attempt to benefit artists.
One major difference between the US law and the proposed EU directive is the performer's financial obligation to their label. When an album is released the artist typically receives no royalties at first as they're used to pay back whatever advance the label has given them.
In many cases this amount is never paid back, resulting in the label keeping all artist royalties long after they've written off the advance as a business expense. Under the terms of Legal Affairs Committee's recommendation the advance debt would be wiped out after 50 years, allowing them to collect their full share of royalties.
Committee members noted "This provision is essential for performers to enjoy all the royalties due to them for the extended period, against a refusal by labels, on grounds that advance payments to the artists have still not been recouped. Without this additional provision, the extension of the term of protection may ultimately only be beneficial to a minority of featured artists."
Session musicians, who often receive no royalties whatsoever, are also given consideration. The committee explains, "Some performers whose names appear in the credits “featured performers” transfer their exclusive rights against a one-off payment. These performers should also benefit from the supplementary remuneration."
Despite their good intentions, the reasoning behind this proposal still seems flawed. In an accompanying memorandum the committee notes that "in the UK, in 2001, only 5% of performers earned over £10000 annually." If they're not making a living from royalties during the first 50 years it's odd to think they should suddenly be entitled to do so at that end of that time.
It goes on to suggest that the additional copyright protection is necessary to prevent "potentially objectionable uses of their performance which are harmful to their name or reputation." But once you put your performance out in public isn't that part of the tradeoff?
Later in the document they do get back to territory that's become sadly familiar from government regulators. Declining label revenues are laid at the feet of P2P file sharing with no research cited to back up that claim. "As regards producers of phonograms, the principal challenges they face are the evaporation of the CD markets and the insufficient replacement revenue from online sales," reads the report, adding "The latter is due to peer-to-peer piracy."
The committee also notes in several places that there should be additional studies done to determine if there's financial need among audiovisual performers (actors) to receive additional royalties. This is fairly ironic considering a similar study commissioned at the beginning of this process concluded the current proposal would be of negligible benefit to recording artists. That study was promptly ignored.
Despite those suggestions the proposed directive would also increase the copyright term for audiovisual works, such as theatrical films and TV shows, to the same 95 years.
It's great that European officials are at least considering artists in their copyright plans. It certainly seems more honest than what we see coming from US lawmakers. But wouldn't it be simpler and more honest to help them avoid being taken advantage of in the first place?
The current approach seems to primarily benefit the labels and studios who are already the cause and chief beneficiaries of that exploitation.
Written by: Rich Fiscus @ 13 Feb 2009 11:31
