The latest on copyright: sound recordings

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John F
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The latest on copyright: sound recordings

Post by John F » Tue Sep 13, 2011 12:18 am

September 12, 2011
Europe Extends Copyright on Music
By LARRY ROHTER

In a victory for the financially troubled recording industry, the European Union on Monday extended the term of copyright on sound recordings to 70 years from 50, while declining to include provisions that would allow artists in Britain and elsewhere in Europe to recoup ownership of their music easily. Had the Council of the European Union not acted, many of the most famous and popular recordings of the British Invasion of the 1960s, including albums by the Beatles, the Rolling Stones, the Who and the Yardbirds, would have fallen into the public domain in the coming years. For example, the Beatles’ first hit record, “Love Me Do,” which was released in 1962, could have been treated next year in much the same way as works by classical composers whose exclusive ownership of their music has expired. With multiple versions available at cheaper prices, the four major record labels would be deprived of one of their biggest sources of income.

“This important decision comes not a moment too soon,” said Geoff Taylor, chief executive of the British Phonographic Industry, a trade group that represents the major labels. “An exceptional period of British musical genius was about to lose its protection. As a matter of principle, it is right that our musicians should benefit from their creativity during their lifetimes, and that they should not be disadvantaged compared to musicians in other countries.”

Musicians, however, were not as enthusiastic. “This is extremely good news for record companies and collection agencies, but bad news for artists,” said the singer Sandie Shaw, who along with Nick Mason of Pink Floyd and Ed O’Brien of Radiohead is one of the leaders of the Featured Artists Coalition, a British group that advocates for musicians’ rights. “It means they have 20 more years in servitude to contracts that are no longer appropriate to a digital age.”

For the record labels, whose sales have dropped by more than half over the last decade, the decision is a marked contrast to coming copyright challenges in the United States. The copyright law approved by Congress in 1976 includes a provision, known as “termination rights,” that allows recording artists and songwriters to reclaim ownership of their work after 35 years.

Many American musicians who made recordings in the 1970s, including Bob Dylan, Tom Petty and Loretta Lynn, are now filing such claims. The four major labels — Sony, Universal, EMI and Warner — are strenuously resisting, arguing that the performers were employees doing “work for hire,” and thus not entitled to claim copyright.

The Council of the European Union said in a statement issued after the vote — which was 17 to 8, with two abstentions — that the main reason for approving the copyright extension was to benefit performers and songwriters. The existing system “often does not protect their performances for their entire lifetime,” and “therefore some performers face an income gap at the end of their lifetimes,” the statement said. But in many cases the artists who made the original recordings back in the 1960s are not the actual owners. In recent years there has been an outpouring of biographies of, and autobiographies by, musicians from that era, including members of the Beatles and the Rolling Stones, in which the artists say that they were duped as youngsters into signing contracts with low royalty rates and relinquishing ownership of their own music to record or management companies.

As a result, 72 percent of the financial benefits from the new directive will accrue to record labels, according to calculations done by the Center for Intellectual Property Policy and Management at Bournemouth University in England. Of the 28 percent that will go to artists, the calculations say, most of the money will go to superstar acts, with only 4 percent benefiting musicians like those mentioned in the European Union statement.

“A term extension is not an appropriate measure to improve the situation of the performing artists,” Belgium argued in its written dissent to the action. “It seems that the measure will mainly benefit record producers and not performing artists, will only have a very limited effect for most of the performing artists” and “will have a negative impact on the accessibility of cultural material” for consumers.

In contrast to copyright law in the United States, copyright law in Europe does not include a “termination rights” clause, nor was one inserted into the new regulations approved on Monday. Instead, the new directive, which the 27 member states are obliged to put into effect within two years, contains a vague assurance that “foresees measures” to guarantee that musicians “actually benefit from the term extension and may recuperate their rights subject to certain conditions.”

The directive does include a “use it or lose it” clause that allows artists to reclaim ownership rights to recordings, but only after 50 years and only if a recording is no longer available commercially. It also sets up a new fund for payments to session musicians and a “clean slate” provision that is supposed to wipe out musicians’ debts to their labels. But Ms. Shaw said the artists’ group wanted “the 35-year thing, because record company ownership in perpetuity is immoral.”

The recording industry lobbied heavily for the new copyright directive, which had been blocked in the past by a coalition of smaller European countries that see the extension as harmful to innovation. Under Prime Minister Tony Blair, the British government commissioned a study that also recommended against the extension, but Prime Minister David Cameron came out in favor of the measure, one of whose chief beneficiaries will be the beleaguered British label EMI, whose assets include records by the Beatles and Pink Floyd.

“This is a dreadful day” for musicians and consumers, said Martin Kretschmer, director of the Bournemouth University institute. “Over all, policymakers are schizophrenic, speaking a language of change and innovation, but then respond to lobbying by extending the right, which gave rise to the problem in the first place. This only entrenches a cynical attitude toward copyright law and brings it into further disrepute.”

http://www.nytimes.com/2011/09/13/arts/ ... dings.html
Last edited by John F on Tue Sep 13, 2011 12:50 am, edited 1 time in total.
John Francis

John F
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Re: The latest on copyright: sound recordings

Post by John F » Tue Sep 13, 2011 12:44 am

The article brings up the term "work for hire," which may be unfamiliar to those who aren't copyright mavens. Conventionally, it describes material created by a company's employees - advertising copywriters, in-house artists, and so on - or others whose work is paid for in their salaries or a flat fee, with no royalty agreement, and is legally the company's property. For the record companies to claim that those whom they recorded, whether the Beatles or Otto Klemperer, were ipso facto their employees, though their recording contracts included provision for royalties, is a transparent falsehood.

That said, the continuing income from these cash cows appears to be vital to keeping companies like EMI and Universal in business and to financing new recordings - including classical music. So we consumers have something of a dilemma. We may feel more sympathy for the performers in old recordings, though many of them are dead by now, but this could be at the expense of today's living performers who may not be able to make new ones, at least for the older, major companies.

My feeling is that the public good is best served when creative work - literature, music, artwork, movies, sound recordings, whatever - enters the public domain promptly when the publishers and others who risked capital to disseminate them, have had a reasonable period to recoup the costs and accumulate profits. Fifty years seems to me more than reasonable. If a publisher or record company has failed to back new work that succeeds not only artistically but in the marketplace, then it is failing at its raison d'etre and is moribund, and if it goes under, it deserves to.
John Francis

maestrob
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Re: The latest on copyright: sound recordings

Post by maestrob » Tue Sep 13, 2011 11:17 am

The corporations win again! :mrgreen: :evil:

I agree with you on this, John. 50 years is more than enough time for labels to recoup their investment. The fact that they are now surviving off their old catalogs simply proves that. Newer independent labels have sprung up and are making headway in the classical world, I imagine that the same is true with popular music and jazz. If the older labels (like EMI) can't be profitable because of bad choices by their boards, then they should close up shop or compete properly.

This smacks of government subsidy and caving in to lobbyists. Recouping ownership rights should be written into law for the EU as well. 35 years works for me.

StephenSutton
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Re: The latest on copyright: sound recordings

Post by StephenSutton » Sun Sep 18, 2011 4:38 pm

I agree too, and Divine Art as a recording group lobbied AGAINST the extension and would strongly argue for a reduction in the USA to synchronise the legislation worldwide. We take this view not from the selfish attitude of those alrady rich but because the main effect wll be to reduce significantly the amount of older material not by the 'big names' but by all the rest including historic and vanishing styles and genres particlulary in popular and regional music. All to be hoarded in the vaults of the big few who don't even know what they have..
Stephen Sutton
Divine Art Recordings Group

CharmNewton
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Re: The latest on copyright: sound recordings

Post by CharmNewton » Sun Sep 18, 2011 4:55 pm

I'm not sure what people are asking for here. Is it control of the session masters? Do people want to have these turned over to the artists? The government? Is it allowing the recordings to go into the public domain?

John

John F
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Re: The latest on copyright: sound recordings

Post by John F » Sun Sep 18, 2011 10:51 pm

CharmNewton wrote:I'm not sure what people are asking for here. Is it control of the session masters? Do people want to have these turned over to the artists? The government? Is it allowing the recordings to go into the public domain?
The article at the top of the thread gives the answers. It's allowing recordings to go into the public domain in 50 years rather than 70 years.

A side issue is the American copyright law, containing "a provision, known as 'termination rights,' that allows recording artists and songwriters to reclaim ownership of their work after 35 years. Many American musicians who made recordings in the 1970s, including Bob Dylan, Tom Petty and Loretta Lynn, are now filing such claims. The four major labels — Sony, Universal, EMI and Warner — are strenuously resisting, arguing that the performers were employees doing 'work for hire,' and thus not entitled to claim copyright." There's no such termination right in European copyright law, but there is a provision that after 50 years, if the recording is no longer available commercially, the artists can reclaim ownership rights.

How the artists are to gain physical possession of the recorded sound isn't discussed. I suppose that the physical media containing the master recordings, the actual tapes or discs, belong to the companies that made them, probably forever. It's the sound that constitutes the recordings that's supposed to revert to the artists, crucially the right to copy it and to sell or otherwise distribute or use the copies. I suppose the companies might be required to provide exact copies of the masters, but that's just a guess. Failing that, the artists could make copies of their own from the CDs or whatever.
John Francis

bricon
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Re: The latest on copyright: sound recordings

Post by bricon » Mon Sep 19, 2011 5:48 pm

John F wrote:
CharmNewton wrote:Failing that, the artists could make copies of their own from the CDs or whatever.
I doubt that an artist could legally use a commercially released CD as the master for re-releases of their own work. Copyright also exists for the re-engineered masters that were made to produce CDs. The copyright gets “reset” each time a re-mastering or re-engineering of a recording occurs – this “new” copyright is almost always in the (existing) recording companies’ favour.

The artist would need to acquire the original master tapes or re-engineer the sound from recordings (probably LPs) which are more than 35 years old. Naxos (and others) does this sometimes with their historical recordings.

John F
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Re: The latest on copyright: sound recordings

Post by John F » Mon Sep 19, 2011 6:05 pm

bricon wrote:The artist would need to acquire the original master tapes or re-engineer the sound from recordings (probably LPs) which are more than 35 years old. Naxos (and others) does this sometimes with their historical recordings.
We'll see whether the courts uphold termination rights and if they do, just how the artists are to take possession of the sound recording. I suggested that the record company might be required to provide an exact copy of the master, but the master and indeed the record company might no longer exist. In that case, the artists might make their own copy from whatever source they can find, and if a record company then comes out of the woodwork to object on the grounds you mention, the artists then might require it to provide the exact copy of the master. Details, details.
John Francis

CharmNewton
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Re: The latest on copyright: sound recordings

Post by CharmNewton » Mon Sep 19, 2011 11:33 pm

John F wrote:
CharmNewton wrote:I'm not sure what people are asking for here. Is it control of the session masters? Do people want to have these turned over to the artists? The government? Is it allowing the recordings to go into the public domain?
The article at the top of the thread gives the answers. It's allowing recordings to go into the public domain in 50 years rather than 70 years.

A side issue is the American copyright law, containing "a provision, known as 'termination rights,' that allows recording artists and songwriters to reclaim ownership of their work after 35 years. Many American musicians who made recordings in the 1970s, including Bob Dylan, Tom Petty and Loretta Lynn, are now filing such claims. The four major labels — Sony, Universal, EMI and Warner — are strenuously resisting, arguing that the performers were employees doing 'work for hire,' and thus not entitled to claim copyright." There's no such termination right in European copyright law, but there is a provision that after 50 years, if the recording is no longer available commercially, the artists can reclaim ownership rights.

How the artists are to gain physical possession of the recorded sound isn't discussed. I suppose that the physical media containing the master recordings, the actual tapes or discs, belong to the companies that made them, probably forever. It's the sound that constitutes the recordings that's supposed to revert to the artists, crucially the right to copy it and to sell or otherwise distribute or use the copies. I suppose the companies might be required to provide exact copies of the masters, but that's just a guess. Failing that, the artists could make copies of their own from the CDs or whatever.
It was difficult for me to tell whether some wanted the recordings to fall into the public domain or become the property of the artists. There seemed to be consensus that the recording company, which made the recordings in the first place, no longer had any say as far as they were concerned.

I believe it is possible to argue that the artists were contracted under "work for hire". The recording companies sought them out and entered into contracts, which would have to specify the artist's property rights in the recordings themselves, if any, in the contract. It was the recording company that arranged the recordings, promoted and marketed the recordings, manufactured the discs and distributed them, inmany cases, globally. The artists have always had the option of forming their own recording companies but chose to not to participate in this mundane work and availed themselves of the systems the major companies had built up over decades. Many of those artists became very wealthy in the process as these recordings promoted concert appearances (and still do). Why should the artists get any special standing in respect to the control of the recordings just because they performed on them? They were paid, and generally, very well, although the latter part is immaterial.

In the U.S., I don't believe the master tapes can be just seized from the recording companies and given to the artists under law, as they belong to the recording companies or those who purchase their assets if they go defunct. What termination rights mean in this context, I can't say.

Interesting topic, though.

John

John F
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Re: The latest on copyright: sound recordings

Post by John F » Tue Sep 20, 2011 2:58 am

CharmNewton wrote:I believe it is possible to argue that the artists were contracted under "work for hire". The recording companies sought them out and entered into contracts, which would have to specify the artist's property rights in the recordings themselves, if any, in the contract.
It's usually the artists who sought out the record companies, sending audition tapes etc., right? And were often turned down, as the Beatles were by Decca before EMI signed them. The artists had independent performing careers before making the recordings, with some exceptions such as the Spice Girls, a group created by (I'm not kidding) Virgin Records. Under their contracts the artists aren't paid salaries but royalties based on sales, which may range from zero to millions, and not a flat fee but an advance against their royalties. This is prima facie evidence that the recordings were not made for hire, and the artists were not the record company's hirelings. (I'm talking pop recordings since that's where the big money is, but all this would apply to the likes of Jascha Heifetz and Herbert von Karajan as well.) Well, it's for the lawyers to argue and the courts to decide, and eventually they will and then we'll know.
John Francis

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