Proposal to Extend Copyright Duration for Performances und Sound Recordings in Europe Criticized

As known to many, the Copyright Term Extension Act of 1998 (CTEA) added 20 years to the duration of copyrights. Writing for the majority in Eldred v. Ashcroft, Justice Ginsburg mentioned the European rule of life-plus-seventy at least five times. It appeared to be a central argument in support of the CTEA and the SC was impressed. It is also well-known that E.U. legislatures have a special place in their heart for copyright law. Nearly 10 copyright-related directives emerged in the past decade-and-a-half. And indeed, one of first copyright issues to tackle was copyright duration.

When Eldred was decided, Directive 93/98/EEC harmonized duration rules among members of the E.U. It imposed the famous life+70 standard across the Continent for works of authorship (art. 1.1). However, performances and sound recordings received "only" 50 years (art. 3).

Meanwhile, a more recent directive (2006/116/EC) amended the 1993 directive, but left the duration rules concerning performances and sound recordings basically unchanged. By the way, the duration of federal copyright in sound recordings held by a corporate entity in the U.S. (see chart – I am no longer capable of fathoming duration rules without charts…) lasts generally for 95 years from publication in the United States for recordings published after March 1 1989.

So now we witness an inverse cross-Atlantic trend washing Brussels. Last summer, the European commission adopted a proposal to extend the term of protection for performers and sound recordings to 95 years. Why? Here’s why:

The aim of the proposal is to bring performers' protection more in line with that already given to authors - 70 years after their death. The extended term will enable performers to earn money for a longer period of time and in any event throughout their lifetime. The income from copyright remuneration is important for performers, as they often do not have other regular salaried income. The extended term will also benefit record producers who will generate additional revenue from the sale of records in shops and on the internet. This should allow producers to adapt to the rapidly changing business environment and help them maintain their investment levels in new talent.

(here’s the link)

The reason I am mentioning this is a comment posted recently by a group of experts from the Max Planck Institute for Intellectual Property in Munich. The comment strongly criticizes the proposal and is well-worth reading. One of the argument is that the current system inappropriately addresses the financial concerns of performing artists. Simply adding 45 years to a badly-functioning system will do little or noting to improve the position of performers.

Disclosure: I was affiliated with the MPI until last year.

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