The flawed proposal to extend the term of copyright protection afforded to sound recordings, robbing consumers in the name of performers but for the benefit of the world’s four major record labels, is being fast-tracked through the democratic process. Earlier this month MEPs from the relevant European Parliament committees presented their draft reports at a meeting of the legal affairs committee (JURI), the Committee which will make recommendations to the European Parliament on how to vote on the Directive early next year. They proposed a host of worrying new amendments which threaten to:

• Weaken further already inadequate measures intended to allow orphan works, and commercially worthless but culturally significant recordings to pass into the public domain (Culture (CULT), Internal Market (IMCO) and the Industry, Technology and Research (ITRE) committees draft reports).

• Allow record labels to deduct “costs” from a fund intended to benefit session musicians, further shrinking the pot of money made available to performers in favour of labels (IMCO committee draft report).

• Dramatically widen the scope of the Directive to include audio-visual recording, even though no relevant impact assessment has been conducted into what effect this might have on consumers and follow-on innovators. (JURI and ITRE committee draft reports).

At the JURI meeting, Dr Lionel Bently of the Centre for Intellectual Property and Information Law (CIPIL) Cambridge, dismissed the proposal stating that “record producers will gain the lion’s share of revenues on sales in the extended term”. He warned that the Directive would accrue serious social and economic costs, and concluded that MEPs should “oppose this measure in its totality.”

Bently is not the only expert to oppose the Directive. In an open letter to MEPs, Europe’s leading intellectual property research centres unanimously condemned the proposal. The European Broadcast Union has also stated publicly that the proposal will make consumers foot the bill while stifling innovation.

Earlier this month ORG met with MEPs in the European Parliament to express our serious concerns about the proposal. We warned that the European Commission’s own figures demonstrate that performers will benefit little from the extended term, while the world’s four major record labels will gain millions of Euros direct from consumer’s pockets. We argued that this damaged the respect necessary for a functioning IP system.

But our voice is not as powerful as yours. It’s vital that you contact your MEPs now and tell them why term extension is bad news.

With all the evidence pointing against this measure, you can call on your MEPs to put a stop to bad IP law and reject this proposal. You can also also tell the appropriate government department in your own EU country (in the UK it is DCMS), as they will be meeting in the Council of Ministers to discuss term extension.

With the European elections next year, Parliament is set to move quickly on this issue. It’s up to you to remind your representatives that their job is to look out for your interests, not to rush through bad law.

Image courtesy of Steve Cadman.

The European Parliament has begun preparing its opinion on the European Commission's flawed proposal to extend the term of copyright protection for sound recordings. MEPs have been appointed to act as rapporteurs, who will guide the committees that will recommend how Parliament should vote. Your MEPs need to know that their voters are concerned and paying attention - get in touch with them to let them know your concerns. To help you do this we've prepared a guide to lobbying your MEPs (click to download) and a briefing pack (click to download).

Lobbyists for term extension are making the case to MEPs inside the European Parliament right now. But your voice is stronger than any lobbyist. We can't overstate it: the most important thing you can do to stop term extension is to let your MEPs know your concerns so they an see and hear your side. Be aware also that MEPs can be deluged with information on many topics and appreciate being treated as individuals. If you want to travel to Brussels to meet your MEPs and need help, drop us a line. If you have a story or an interest that we should know about, drop us a line. Now is the time to speak, so use your voice wisely!

We'll keep you updated of major developments, but you can track the proposal on the Parliament website and the details of relevant committees and MEP members are also available. Currently Legal Affairs (JURI) are leading. Three other committees - Internal Market and Consumer Protection (IMCO); Industry, Research and Energy (ITRE); and Culture and Education (CULT), will also help.

In the meantime the Directive is also being discussed by representatives of Member States in the Council of Ministers. And criticism of the Commission's proposal is emerging all over Europe.

The world leading Max Planck Institute for Intellectual Property Law in Munich, has released a statement concluding that prolonging the term of protection "cannot be justified from any point of view."

Professor Bernt Hugenholtz, Director of the Institute for Information Law (IViR) in Amsterdam, and one of the Commission's own advisers, has accused Commission President Jose Manuel Barroso of intentionally misleading policy-makers with the proposal.

Pekka Gronow, sound archivist, author of "An International History of the Recording Industry", and adjunct professor of ethnomusicology at the University of Helsinki, has written and concluded that performers benefit very little from the proposed extension ("in most cases the resulting sums will not even cover bank charges").

And of course, ORG have written to the authorities in the UK, explaining exactly why the proposal makes no sense.

Thanks to inyucho for the image.

Last month the UK Intellectual Property Office (UKIPO) asked for comments on the European Commission's proposal to almost double the term of copyright protection on sound recordings. The Commission's proposal [pdf] is flimsy, misleading, and peppered with contradictions. Our submission [pdf] asks the UKIPO to reject it in the strongest terms.

Our submission shows that for the vast majority of performers the projected extra sales income resulting from term extension is likely to be meagre: from as little as 50¢ each year in the first ten years, to as "much" as €26.79 each year. That's because most of the gains (89.5%) will go to the top 20% of recording artists. Meanwhile the major labels will be dividing up millions in extra handouts every year.

What's more, performing artists will make no extra revenue from radio airplay and other income streams arising from so-called "secondary remuneration rights", and may even make less. The Commission assumes that fees paid by users of recordings, e.g. broadcasters, will remain constant. That means the amount of earnings available to performers will not be any bigger - it will just be sliced more thinly and distributed longer to more rightsholders. Performers will not earn any more over their life time, and are likely to earn less, as money will be transferred from the living to the estates of the dead.

The proposal is set to cost hundreds of millions to consumers, with repercussions to the public interest, follow-on innovators and cultural diversity. It serves as a windfall for an industry the Commission would have us believe is immune from simple economic logic. No wonder Europe's leading copyright thinker - and adviser to the European Commission - has accused the Commission of wilfully misleading the European Parliament, and the citizens of the European Union.

Thanks to everyone who helped us respond - you can download our final submission here. Thanks to yonmacklein for the image.

When the European Commission put forward their proposal to retrospectively extend the copyright term granted to sound recordings, locking away vast swathes of our cultural heritage in a commercial vacuum for 45 years, it was clear that they had rejected all the expert evidence in favour of voodoo economics.

Now Professor Bernt Hugenholtz has written a letter to Commission President Jose Manuel Barroso asking why. Huggenholtz, Director of the Institute for Information Law (IViR), which was tasked by the European Commission to look into the arguments for and against extending copyright term, says his team were "surprised" to discover that their studies had been completely ignored, and that statements the Commission have made that "there was no need for external expertise" in drafting the proposal were "patently untrue". He goes on (with our emphasis):

As you are certainly aware, one of the aims of the 'Better Regulation' policy that is part of the Lisbon agenda is to increase the transparency of the EU legislative process. By wilfully ignoring scientific analysis and evidence that was made available to the Commission upon its own initiative, the Commission's recent Intellectual Property package does not live up to this ambition. Indeed, the Commission's obscuration of the IViR studies and its failure to confront the critical arguments made therein seem to reveal an intention to mislead the Council and the Parliament, as well as the citizens of the European Union.

In doing so the Commission reinforces the suspicion, already widely held by the public at large, that its policies are less the product of a rational decision-making process than of lobbying by stakeholders. This is troublesome not only in the light of the current crisis of faith as regards the European lawmaking institutions, but also - and particularly so - in view of European citizens' increasingly critical attitudes towards intellectual property law.

The letter goes on to demand that the Commission fully inform the European Parliament and the Council of Ministers of the findings of the IViR studies. You can read it in full here.

In a letter to the Times today Europe's leading professionals in the field of intellectual property have explained why the proposal for copyright term extension would harm Europe's creators and consumers:

The simple truth is that copyright extension benefits most those who already hold rights. It benefits incumbent holders of major back-catalogues, be they record companies, ageing rock stars or, increasingly, artists’ estates. It does nothing for innovation and creativity. The proposed Term Extension Directive undermines the credibility of the copyright system. It will further alienate a younger generation that, justifiably, fails to see a principled basis.

Many of us sympathise with the financial difficulties that aspiring performers face. However, measures to benefit performers would look rather different. They would target unreasonably exploitative contracts during the existing term, and evaluate remuneration during the performer’s lifetime, not 95 years.

Following on from last week's EU Commission announcement, they haven't been alone in voicing their concern. Fortunately, the battle isn't lost. Right now you can help campaign for a rational copyright policy in three ways.

How you can help 1:

The UK Intellectual Property Office, the government body charged with ensuring balance and fairness in intellectual property, has asked the public and all those with an interest to make sure their voices are heard, and contact the UK-IPO by the end of August. Remember, always be polite and considerate when explaining why term extension concerns you. You can find out which government body in your country is responsible for intellectual property policy here.

How you can help 2:

We've loaded in the full texts of the proposal and the relevant impact assessment. Help us challenge the arguments and point out evidence that disproves their claims. You can leave your comments using our collaborative annotation tool.

How you can help 3:

We need more people to show their support. More than 12,500 people have signed our petition, so tell your friends and help us spread the word across Europe so that you can be heard in Brussels: http://www.soundcopyright.eu/petition.

Disregarding the evidence-based findings of their own advisors, the UK government's independent analysis, and those of Europe's leading intellectual property research centres, the EU Commission has formally accepted DG Internal Market's proposal to extend the duration of copyright protection for sound recordings.

Copyright term is a quid pro quo, designed to balance the interests of consumers and creators. Confusing this with contractual issues and pension schemes while ignoring the evidence gives Europeans a raw deal. Europe's citizens are entitled to more than a privatised cultural heritage.

Recent evidence such as DG Internal Market's own review of the Database Directive 2005, has confirmed that granting further intellectual property rights without a proper basis delivers no real benefit to the competitiveness of the EU.

While granting unending intellectual property rights may sound good, a fair and balanced approach means that legislators must avoid dismissing economic rationale and the traps of faith based policy and voodoo economics that simply grant IP rightsholders requests for more. Adhering to the same standards that environmental and pharmaceutical regulation are held to is essential, because the significant losers will not simply be consumers, but also voters.

Following its adoption the proposal will proceed to the Council of Ministers and to the European Parliament. Please show your support and sign our petition as we continue to oppose term

Today, the leading European centres for intellectual property research have released a joint letter to EU Commission President Jose Manuel Barroso, enclosing an impact assessment detailing the far reaching and negative effects of the proposal to extend the term of copyright in sound recordings. With the confusion and disillusionment of Ireland's rejection of the Lisbon Treaty still ringing in the Commissions ears, the letter states:

"This Copyright Extension Directive, proposed by Commissioner McCreevy, is likely to damage seriously the reputation of the Commission. It is a spectacular kowtow to one single special interest group: the multinational recording industry (Universal, Sony/BMG, Warner and EMI) hiding behind the rhetoric of "aging performing artists".

"The Commission is required to conduct an impact study for each directive it proposes. We, the leading European centres for intellectual property policy research, have collectively reviewed the empirical evidence. Our findings are unanimous. The proposed Copyright Extension Directive will damage European creative endeavour and innovation beyond repair."

Read the letter and impact assessment in full. Further Details are available from the Centre for Intellectual Property and Management.

Following on from our positive exchange with the European Commission, we have today written to Commissioner Meglena Kuneva, who looks after the interests of Europe’s consumers. We ask that she join Commissioner Reding in opposing the proposal to extend copyright protection, highlighting the lack of evidence in favour of extension. The full text of this letter, which was co-signed by Danny O’Brien of the EFF, is below. We expect two other powerful consumer-protection organisations, TACD and BEUC, to send similar requests to Commissioner Kuneva within the next fortnight.

20 May 2008

To: Meglena Kuneva
European Commissioner for Consumers
DG Health and Consumer Protection
European Commission
B-1049
Brussels, Belgium

Dear Commissioner Kuneva

SUBJECT: COPYRIGHT TERM EXTENSION IN SOUND RECORDINGS

We write to express our strong concern about the recent proposal announced by Commissioner McCreevy, Commissioner for the Internal Market, to nearly double the term of copyright protection in sound recordings (1). We strongly believe that this proposal is not in the interests of European consumers. We set out briefly below the evidence for our case.

We refer you to the report into The Recasting of Copyright & Related Rights for the Knowledge Economy (2), which was commissioned by Commissioner McCreevy's own DG Internal Market and Services. It observes that extending the term of copyright protection in sound recordings would mean that, “ultimately, the revenues that phonogram producers and performing artists would recap from term extension... would have to be paid by users and consumers of sound recordings”. The report makes clear that these would constitute additional revenues, and not revenues necessary to fulfil the initial goals of related rights (that is, to incentivise the creation of the sound recordings in the first place). It further establishes that until there has been reform in the area of contract law, the majority of performing artists would be unlikely to receive any of this added revenue. Rather, the revenue would flow from consumers' pockets directly to the world's four major record labels.

The proposal to extend term appears to have little supporting evidence that it will bring meaningful benefit to performing artists, in the face of significant evidence that it will harm consumers. In 2004 the Commission concluded that, “public opinion and political realities in the EU are such as not to support and extension in the term of protection. Some would even argue that term should be reduced”. We sincerely hope that you, as the representative of consumers in Europe, feel compelled to ask Commissioner McCreevy what has changed since then, such that consumers should be expected to pay these extra costs for another 45 years.

If the European Commission proposes to extend term despite compelling evidence that this is the wrong thing to do, it risks alienating a large proportion of European consumers from the law. To the extent that the enforcement of private use of copyrighted works relies on a social contract between rightsholders and consumers, we believe this is highly damaging. In this respect, we draw your attention to the ten thousand individuals who have so far signed a petition (3) opposing term extension and asking the European Commission to ensure that policy in this area reflects all concerned stakeholders, including consumers, and not just the commercial rights-holders who advocate for extended copyright term.

We hope that having considered the case made above, you are prepared to use your powers to oppose the proposal to extend copyright term. Should you have any questions regarding the content of our letter, or would like to meet in person with representatives from either of our organisations, please do not hesitate to contact us. We look forward to hearing from you.

Yours sincerely,

Becky Hogge, Executive Director, Open Rights Group

Danny O’Brien, International Outreach Coordinator, Electronic Frontier Foundation

1. http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/240
2. http://ivir.nl/publications/other/IViR_Recast_Final_Report_2006.pdf
3. http://ivir.nl/publications/other/IViR_Recast_Final_Report_2006.pdf

We will of course update the blog with any further word from the Commission, particularly as Commissioner McCreevy prepared to formalise his proposal.

Earlier this month, we received an encouraging response from Commissioner Reding to our request that she protect the interests of the Information Society by re-examining the evidence against an extension of the term for copyright protection and opposing the plan to subsidise the record industry. Here is the response in full:

Brussels, 5 May 2008

Dear Mrs Hogge

On behalf of Mrs Vivianne Reding and further to my initial response to you on 7 April 2008, I thank you for bringing the concerns of the Open Rights Group in relation to the announcement made by Commissioner Mc Creevy in February of his intention to submit a proposal to the Commission for the extension of the protection of performers' rights.

Any re-examination of the protection of performers' rights will have to take due consideration of the outcome of the most recent reports which have addressed this question and analyse the impact and possible drawbacks of such a proposal. It should also ensure that the interests of all stakeholders involved, including public and cultural institutions, are duly considered and balanced, together with the interest of society at large.

In this context, we recognise the efforts of the Open Rights Group to highlight to a large number of users, the importance of preserving a public domain which includes musical works. We have taken note of the principles outlined in the Adelphi Charter, to which you draw our attention in your letter of 19 March 2008.

As the Commissioner for the Information Society and Media, Mrs Reding is particularly sensitive to the need to improve the conditions for a robust and dynamic digital content sector which to a large extent relies on affordable access to musical and other works involving performer's rights.

Yours Sincerely

Thanks to the enterprising folks over at p2p forum Italia, the Sound Copyright website is now available in Italian. This is on top of a new Dutch translation of the site put up at the beginning of this week. Thanks to everyone who has helped out with translations so far.

If you don't see this site in your native language, and you'd like to help spread the word about sound copyright, please email us (info@soundcopyright.eu), and let us know!