UK: Extension Of Term Of Copyright In Recorded Music

Last Updated: 17 October 2011
Article by Robin Bynoe

Amid Euro-spin and counter-spin the European Commission has issued a directive, following a vote in the European Parliament a couple of years ago, requiring Member States to pass legislation extending the term of copyright in recorded music from fifty to seventy years. The original proposal had been ninety-five years; seventy was a compromise.

The Euro-spin paints a heart-warming picture of session musicians, now able to eke out their declining years in dignity thanks to payments for the use of 'their works'. See for example the PPL site at click here, which actually features a heart-warming photograph of a session musician in his declining years. The counter-spin suggests that this is a cynical exercise for the benefit of aging rock stars and, overwhelmingly, the recording companies, and that the session musicians will get pence, at best.

Let us remind ourselves of what has been the legal position until now.

There are usually two copyrights when music is recorded. The first is that in the composition: music and words or music alone. It belongs to the composer or a professional music publisher to whom the composer assigns it. The second is the copyright in the recording itself. That usually belongs to the record company.

When the recording is exploited, for example by being played on the radio, a fee is payable to the composer (or publisher) and another to the record company, for consent from the owners of the two copyrights.

There is then a third type of right, which belongs to the performers of the music recorded. This subdivides into two.

Performers have a "non-property right" to prohibit the exploitation of their recorded performances, or to consent in exchange for payment. Performers invariably consent to the exploitation by the record company of their performances: that after all is why they performed them in the first place. Usually (invariably for session musicians and increasingly with featured performers of recorded classical music) the consent is given in exchange for a flat fee, but when the performance is in the context of a long-term recording contract with continuing commitments on both sides, the performer will be entitled to a royalty, often calculated after an advance and other costs have been recouped. This right dates from 1988.

In 1996 performers received in addition the "property right" to receive "equitable remuneration" for the exploitation of recorded tracks incorporating their performances. The period of copyright for composers is the life of the composer plus seventy years. The period both for recordings and for performances is fifty years flat.

How does that work in practice?

The position of session musicians is simple.

They are motivated to do the work by being hired. They turn up, play as directed, take their fee and go home. Creativity is normally discouraged. As Pete Atkin and Clive James put it in Sessionman's Blues:

I've got the sessionman's blues

I played on three albums today

I paid a sessionman's dues

I played what they told me to play

Then I climbed in my Rover 3-Litre and motored away

Where musicians on continuing contracts are concerned, the position is a little more complicated. The musician will probably incur a large debt to the record company, which may pay an advance against royalties – the royalties being a portion of the money that the record company makes from exploiting the recording - and may incur recording costs. If it owns the studios itself, some of the recording costs may tend towards the notional. It may have interest running on the debt. In most cases this combination means that musicians never get into profit and are never actually paid any royalties; they live on the advances. Many relatively successful musicians who recorded music that was released on vinyl in the Seventies were surprised to find, when the company rereleased the music on CD in the Nineties, that the effect of interest silently accruing in the meantime was that the debt was now enormous and they were paid no royalties for the CD release either.

A small number of musicians however are so successful that the advance is recouped, their account with the record company goes into profit and they receive regular royalties. We may perhaps assume that this group includes names being bandied about in the Euro-spin and counter-spin, such as the Beatles, Pink Floyd and Cliff Richard.

Between this fortunate group and the session musicians is a great gulf. Some years back, a fascinating book was published called Random Precision: Recording the Music of Syd Barrett 1965 – 1974, by David Parker. This details every day that Syd Barrett, the prime mover in the original Pink Floyd, spent in the recording studios, both as a member of Pink Floyd and as a solo artist. Most of this was done at EMI's Abbey Road Studios, one of the world's most prestigious and best-run recording studios, at a time when Pink Floyd were one of the world's premier groups. Nevertheless, although a great deal of detail is available, the identity of the backing musicians is as often as not a matter for conjecture. Few who have heard it can forget the brass band on Pink Floyd's Jugband Blues, but no one remembers who played in it.

We therefore have four categories of performing musician:

  1. Cliff Richard and his set, entitled to fees for fifty years;
  2. the unrecouped musicians, to whom royalties are due, for fifty years, but never actually payable;
  3. the session musicians who are known to the record producers, who receive their flat fee and no more; and finally
  4. the session musicians that time forgot – the Jugband bandsmen - who also receive their flat fee and no more; and two extra categories:
  5. the composers of the music, getting fees for the use of their compositions, for life plus seventy years; they will often be the same people as those in categories 1 and 2; and
  6. the record companies, bearing the costs of the recording and marketing and the risks of the venture generally, and in return getting to keep the bulk of the money generated by their recordings – for fifty years.

Then comes the politics. The prime movers for change appear to have been the Cliff Richard set and the record companies. Both of them thought that it would be nice to go on receiving money in respect of recordings for more than fifty years. Two things must have struck the aging rockers (Cliff Richard is actually a bad example) and the record companies. The first was that the golden goose that is the Sixties was about to pass the fifty-year mark, so something had to be done quickly. The second was that as candidates for our compassion, aging rockers and record companies come some way from the top of the list. So three arguments were advanced.

The first was that of fairness. It was 'unfair' that performing musicians and record companies should receive fees for only fifty years whereas composers were entitled for their lives plus seventy years. Nobody however suggested that it was 'unfair' that they should receive fees for longer than the twenty years appropriate for the inventors of patented inventions or, probably a better analogy, designs, where the period is fifteen or twenty-five years.

The second is not really an argument. It is a Dickensian picture of a session musician, his youth and his skills in decline, the unstrung viola in the corner of the room, and a pile of coins on the dresser, to be exchanged, when a few more coins can be added to it, for a small pie; meanwhile others (the record companies, but we don't mention that) grow fat on 'his work'.

The third is that paying performing musicians more money would incentivise them to greater creativity, for the benefit of us all.

Why session musicians should be paid a fee for a day's work and then get royalties for the same day's work decades later when they are old, no one explains. It is not a deal that is available for craftsmen, for example, or anyone else much, unless they create real, original and valuable intellectual property.

These arguments got nowhere in Britain. The Gowers Report concluded that there was no merit in extending the fifty-year period. Lawyers generally wrote that it would not materially improve the lot of session musicians and that an indefinite prohibition on the reuse of recordings would be an unjustified fetter on creativity. And as to the argument that rewarding performing musicians better would incentivise them to greater creativity, it was remarked that no one was ever incentivised to do anything by the thought that in fifty years' time someone might change the rules retrospectively.

Unabashed, the bandwagon proceeded to Brussels, where artists' impressions of starving session musicians, like those of smoking beagles but infinitely more affecting, were no doubt pressed into the hands of Eurocrats. In Brussels the reception was warmer, and the cause was taken up by some in the European Parliament and by Commissioner McCreevey.

The European Commission commissioned research from Professor Bernt Hugenholtz of the University of Amsterdam. Professor Hugenholtz reported, in line with the Gowers Report, that there was no justification for an extension in the fifty-year term. Nevertheless, Commissioner McCreevey put a proposal forward to the Parliament for a forty-five year extension – to ninety-five years. The proposal adduced no independent evidence, and simply said that there was "no need for external expertise". It did not mention the inconvenient report from Professor Hugenholtz.

Some members of the European Parliament thought that ninety-five years was a bit much but they compromised at seventy, and through it went.

The subsequent press release gives some idea of the quality of the debate. The entire section entitled "Current legislation on copyright" reads as follows:

Under current EU laws, recorded musical performances are protected for a maximum of 50 years. This means that over a period of 50 years, performers receive remuneration for each time their work is played on the air. After 50 years, artists lose control over the use of their works and no longer receive this income.

Composers already enjoy copyright protection for 70 years after their death.

Leaving aside the interesting question how composers can "enjoy" anything when they're dead, this is simply not true. Performers do not "receive remuneration for each time their work is played on the air". Nor, even if they do receive money, do they ever "control" the use of "their work" (presumably it means "performances"); the record companies do.

The press release also comments that the new law will:

reward those session musicians who gave up their rights when signing the contract for their performance.

This is also a very funny way of putting it. Until 1988 the session musicians had no rights to give up, and until 1996, when they acquired the "property right", no rights to receive money – and the property right is inalienable anyway, so they couldn't give it up even if they wanted to. If the members of the European Parliament voted on the basis of briefings like this, they must have thought that they were enacting something rather different from what they actually did enact. Anyway, we now have the Directive, and this in essence is what it provides:

  • It is to be implemented into national law within two years. (Two years from now is 2013. That is exactly fifty years from 1963, the year of the Beatles' first LP. Just in time!)
  • The period of copyright protection of recorded tracks is then extended from fifty to seventy years, but not for material recorded before 1963.
  • Record companies are to put aside 20% of their gross receipts from exploiting their copyright in recorded tracks. This money is to be made available to "performers who have ... assigned their rights ... against a one-off payment". That's categories 3 and 4 in the analysis above. The funds are to be administered by collection societies. It is not clear whether performers are ineligible if they performed before 1988, when they first acquired any rights to assign. If so, our friend the elderly and decrepit session musician will not be benefiting for some decades yet.
  • There is to be a "clean slate" for "performers who have assigned their abovementioned rights ... in return for royalties". These are categories 1 and 2. There are to be revised agreements between these individuals and the producers in relation to the final twenty years "unencumbered by advance payments or contractually defined deductions." This is to deal with the point made above that records rarely go into profit. The clean slate is to ensure that at the end of their lives in copyright, accumulated advances and interest are forgiven and the records do go into profit.

    The effect is intended to be that everyone in category 2 is promoted into category 1, but only in their twilight years, or, more likely, since they only become eligible after fifty years, after they have started enjoying death. How this will work out in practice remains to be seen. The wording is a little vague. It refers to contracts' being "renegotiated"; it is not clear between whom the negotiations are to be conducted but it does say that "Member States should have procedures in place in case the renegotiation fails". This is helpful only up to a point.
  • Finally there is the racily titled "Use It or Lose It" provision. This also relates only to the twilight period between fifty and seventy years after the making of the track. If the producer is not then making the recording "available to the public, by wire or wireless means in such a way that members of the public may access it from a place and at a time individually chosen by them" the performer can ask for the rights back.

There is of course a problem: one track, lots of performers; not only that, but lots of performers of different status. Let us take Jugband Blues again. Here we have the continuing members of Pink Floyd, wealthy and powerful if not always on speaking terms, the estates of the dead members of the band – the Barrett estate armed with the allied composer's copyright - and the session musicians, the Jugband tuba players, faceless, unidentifiable and forgotten. Who calls for the rights to be assigned, in the unlikely event of EMI failing to put out yet another collector's edition of Saucerful of Secrets?

It may be a problem but Brussels is up to it.

This is what the Directive says:

Where a phonogram contains the fixation of the performances of a plurality of performers, they may terminate their contracts on transfer or assignment in accordance with the applicable national law.

So that's clear.

Actually it will rarely happen. All the record company needs to do is to dump the track with minimal bother or cost onto iTunes, and it will be available to the public, by wire or wireless means, until the copyright curtain finally comes down.

  • Having sorted out the music business, the European Commission declares its intention of doing similar to the film industry.

So what will happen?

Tracks that would otherwise come into the public domain will be locked back into copyright. Musicians who might otherwise have sampled them, mocked them, made homages to them, generally engaged with them, will have to stop.

More money will have to be found to meet the requirements of the Directive. There is only one possible source for this: the consumer. CDs and downloads will cost more.

Most of the extra money will go directly into the pockets of the record companies and stay there.

Most of the money designated for session musicians will go into designated accounts of collecting societies and stay there. Occasionally old men will emerge, like the Tichbourne Claimant, asserting not royal blood but that they once played the tuba with Syd Barrett. They will be easily repulsed.

Some Sixties rockers will get even richer.

A final thought: if the European Commission was really concerned about distressed session musicians, why didn't it simply beef up the "property" performers' right referred to above, sort out what "equitable remuneration" is actually supposed to mean, and tie the right to a compulsory contribution to a fund, maybe administered by a collecting society, with a black box arrangement so that the Jugband bandsmen get their money even if the paper records, forty years on, have been destroyed?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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