The Wrong Kind of Fair: European proposal to extend term of performers’ rights
The Wrong Kind of Fair: European proposal to extend term of performers’ rights
The Wrong Kind of Fair: European proposal to extend term of performers’ rights

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    European Commissioner Charlie McCreevey intends to propose a 45-year term extension for performer's rights. Currently, the European Union's Copyright Directive requires EU member countries to give performers a 50 year right in their performances.

    McCreevey argues for the extension as a matter of fairness, saying that, since composers get a copyright term of life plus 70 years, that current European law makes performers the “poor cousins” of musical IP.

    The difference between the two terms is striking, especially to those of us in the US, where composers and performers alike receive a copyright in their creative contribution, with the same term—life plus 70. The reason that performers get a different term of rights is that in Europe and elsewhere, performers don't get a copyright in their performances—copyrights are reserved for the authors of works such as composers. Instead, performers get a “related right” of their own.

    There's an interesting philosophical debate to be had as to whether or not the interpretation of someone else's piece through performance is worthy of the same rights as the original composition. But none of this answers the question of whether or not a 50 year or a 95 year term is appropriate. McCreevey says he has seen no reason why there should be such a large disparity between a copyright term and the performer's rights term, and I might see his point of view—except that there isn't any reason why the copyright term should be so long in the first place.

    One very telling talking point from McCreevey's press release focuses on what he calls the “pension gap.” The idea is that, since many session musicians begin performing in their 20s, a 50-year copyright term will expire when they are in their 70s, leaving them with a “gap” between this source of income and their deaths (he phrases it a bit more tactfully).

    This puzzles me. I understand the need to provide for retirees past the age of 70, but I'd hardly look first to IP law for my social services. After all, the poor session musicians that McCreevey cites aren't going to rest on their laurels and expect to earn their living primarily from recordings made 50 years ago; they will, just like everyone else, be continuing to work and make income from other endeavors, whether or not those jobs pay them on into the future. And if it's really the income and livelihood of the artist that's at issue, will the right then terminate if the performer dies before the 50 years are up? Somehow I don't think that that's in the proposal.

    McCreevey claims that this proposal is for these starving artists, and not the wealthy and prominent performers who have been agitating for this extension for some time, yet it's those richest that will benefit the most from it—since they are earning enough from those royalties to treat them like a pension.

    The limited monopoly—regardless of the type of IP—exists not to provide a sinecure for creative people, but to give them a decent shot at making money from their creativity. Will more people create if their great-grandchildren can benefit from potential profits? Given that people have created great works without any guarantee of a monopoly for centuries, a lifetime right seems over-the-top to begin with.

    If the purpose of granting IP rights is to promote the progress of science and the useful arts; or to reward creative and artistic work, then the main consideration in determining the copyright term should be achieving that goal. Instead, extending the term seems to be more about making more money.

    McCreevey sees no negatives to extending the term of IP rights, noting simply that prices of out-of-copyright sound recordings don't seem to be lower than prices of sound recordings in copyright. That's arguable (especially given how recording quality and preservation improved throughout the 20th century). But the bigger point is that IP does more than cost a few consumers a bit more cash.

    IP is a grant of exclusive rights, of monopoly power over expression—speech, if you will. Granting someone IP rights over a work not only allows them to make some money, it allows then to prevent others from using that work as a manner of expressing themselves. We've seen bad actors try to use the power of copyright as an excuse to stifle criticism, hide misdeeds, and discourage market competition.

    Extending the term of a monopoly is a serious undertaking—not one that is left to brief consideration of a couple of potential factors, like CD prices and performers' rights to a pension. Nor should it be based on a skewed idea of fairness that keeps ratcheting terms towards forever and a day.

    Whether or not performers get a term as long as composers isn't the only question of what is fair—it's not even the most important question. The question of fairness that needs most to be addressed is whether the balance between creator and society—the artist and the audience—is struck fairly.