Many advocates and experts from around the world have had a long and hard fought battle to stop the major copyright industry’s push to extend the term of copyright. It’s very likely to be welcome news in Britain when this kind of opinion comes from “leading European centres for intellectual property research”.
In the last couple of months, copyright term extension in Britain seems to have become a dormant topic. The last major movement in this field came back in early March where a British MP objected to Copyright Term Extension legislation. Now, the Open Rights Group is reporting that top legal advisers are saying that, among other things, “The proposed Copyright Extension Directive will damage European creative endeavour and innovation beyond repair.”
Said Gavin from the Open Rights Group, this comes at a time with “the confusion and disillusionment of Ireland’s rejection of the Lisbon Treaty still ringing in the Commissions ears”
The letter (PDF) to José Manuel Barroso, president of the European Commission contains the following:
According to press reports, a draft directive extending the term of copyright for sound recordings by 45 years to 95 years is about to be adopted by the Commission (”before the summer break of 2008″). 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.
That’s got to leave a mark. The impact assessment doesn’t seem to touch on the subject lightly either (PDF). FRom the impact assessment:
From the point of view of the Internal Market, the term of protection for phonogram producers does not cause particular concern since the term has been harmonised in the Community and also been incorporated by the 10 new Member States. (…) Moreover, it seems that public opinion and political realities in the EU are such as not to support an extension in the term of protection. Some would even argue that the term should be reduced. At this stage, therefore, time does not appear to be ripe for a change, and developments in the market should be further monitored and studied.”5 It is indeed hard to see how extending exclusive rights to the catalogue of recorded music for another 45 years would benefit society. Following years of fierce and sustained lobbying by the trade bodies of the record industry, however, the copyright unit of the Internal Market Directorate is currently drafting the text of the extension directive which the European Commission aims to adopt as a formal proposal to the European Council and the European Parliament “before the summer break of 2008”. It is still possible for the Commission to see sense, in particular the commissioners who speak on competition (Neelie Kroes), consumer protection (Meglena Kuneva), enterprise and industry (Günter Verheugen), the information society (Viviane Reding), and science and research (Janez Potočnik).
In order to assist rational policy making, leading research institutes called a meeting at Bournemouth University in May 2008. Collectively, we have reviewed the empirical evidence on the issue of term extension.
The impact assessment suggests the following:
- We have seen no evidence that living artists as a whole would benefit decisively from an extension of exclusive rights held by record companies. The benefits will fall to those who need it least: already wealthy performers, and their estates and record companies.
- An exclusive term of protection of 50 years should be more than sufficient to cover the investment horizon of record producers. Any retrospective protection is in effect a windfall that will negatively affect access to, and exploitation of the back catalogues of recorded music.
- While the empirical evidence is missing, it is simply preposterous to claim both, that term extension does not make any difference to consumer prices, and that record companies need term extension to boost their revenues.
- the effects of term reduction should be as thoroughly investigated as the proposed extension.
With this fresh blow to the copyright term extension in Britain, it’s unlikely that the issues will go away any time soon so long as there is a push to extend it.
Related Posts
- British Government Announces Support for Copyright Term Extension
- British Copyright Term Extension Bill Delayed
- A Look Back – European Copyright Term Extension Effort Draws Concern
- European Anti-Copyright Extension Petition Gathers Momentum
- Open Rights Group Urges on Fight to Stop Copyright Extension
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Draconian use of Copyright Acts by the entertainment industry possibly opens a Pandora’s Box.
The original Copyright Act of 1842, and the International Copyright Act, 1886, the Berne Convention and the Copyright Act 1911, the Copyright Act 1956, the Universal Copyright Convention, and the Copyright Designs and Patent Act 1988, were, in 1995 extended to grant copyright protection from 50 – 70 years, and were again amended and strengthened by The Copyright and Related Rights Regulations of 2003.
These law created the offences for which Napster, Pirate Bay and a whole host of individual domestic down-loaders have been successfully prosecuted.
The lobbyists of the film and entertainment industry by intensive, prolonged, aggressive and determined lobbying, have earned millions of dollars during the last ten years from their clients in order to convince the various lawmakers of their client’s copy rights. Universal, SonyBMG, EMI and Warner would appear to have been the largest contributors and will doubtless be the greatest beneficiaries. Both lobbyists and industry CEO’s correctly claim that millions of dollars worth of revenue have been lost to the industry because of piracy; the unlawful downloading of copyright material. The combined turnover of the film / movie and entertainment industries runs into billions, but any loss of revenue is a loss, and they have now proved, and are continuing to prove their point with regard to the Napster and Pirate Bay websites and now hundreds, or possibly thousands, of private people are threatened with court action.
In their desire to prohibit the unlawful use of copyright material, and to impose drastic fines, and or imprisonment, on any and all offenders it is just possible that the entertainment lawyers may have overlooked the entertainment industry’s own use, possibly unauthorised, and7or illegal, of images of property or location or real estate which require Location Release Agreements; the use of shop fronts or advertising hoardings, which require Material or Trade-Mark Releases, and the inclusion of petrol pump, garage or other illuminated displays, or company vehicles and which display logos on the sides of vans, lorries, etc etc. which require similar Agreements. Model Releases are required for “extras”, who are willing or unwilling participants in a filmed or recorded image. Location Releases are also required for any images made from any third party property. Making a recording, a film, of the house next door, No 4 perhaps, from the garden of No 2, or No 6 or even No 46, or making this image from a hired vehicle, which is a third party property, or possibly a bus or train, or a hired scaffolding or crane or helicopter, constitutes a breach or infringement of copyright and various licences, permissions, agreements or contracts need to have been made prior to publication/showing or distribution of these images in any form.
According to the various Acts it seems that;
Without written confirmation of each separate permission in respect of the locations, models, materials and works all other acts are prohibited including, but not limited to, the following:
· reproduction of any kind in any medium.
· storage in any medium including extraction into any other medium.
· public performance, broadcast or display.
· rental, leasing or lending.
· extraction, manipulation or altering in any respect.
Therefore any showing of any film/movie in which the client’s property is shown; without a clearly defined contract covering such showings; is clearly an infringement of client’s copy rights.
Is it therefore possible that the large entertainment companies are using the criminal law to close pirate companies whilst at the same time, possibly infringing the rights of various individuals who, doubtless, have similar rights under these new laws.
The relevant provision states;
“A person who infringes copyright in a work by communicating the work to the public –
(a) in the course of a business, or
(b) otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright, commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work.”
And it has been suggested that
“For a film company to have used a location, with or without a Location Release then subsequent use of the images of the location or property in a film/movie become subject to one or more of the above Copyright Acts”
The various Broadcasting Acts are also concerned with the unauthorised use of images; those without a location, trade-mark, material or model release(s) whilst The Human Rights Act 1988 is concerned with unauthorised use of personal images and model releases.
Any real or imagined action for infringement of copyright is of course subject to the various Laws of Limitation, or Statutes of Limitation, which, in most countries is a period of time of some six to eight years. The various Acts have determined that each subsequent publication of a copyright work requires a separate permission. Therefore the transfer of the original images from 35mm film stock; possibly in use until the 1970’s; to video tape, until the 90’s, to DVD, hard disc, laser disc, electronic media etc., all required a renewal of any existing contract or agreement, or the preparation of a new licence. Should any of these agreements be lacking then the film, company would appear to be in primary infringement of copyright.
Secondary infringement may well also have been perpetrated by various intermediaries; “soft targets”; cinemas, broadcasters, wholesalers, shops, distributors and agents, printers, producers of VHS / DVD etc., tapes and discs. Secondary infringement of copy rights, due to the strength of the laws brought into being by the entertainment industry, also carry unlimited fines and the possibility of incarceration.
Sub-titled, re-titled or dubbed films as well as digitally re-mastered or digitally coloured movies are obviously re-publications and therefore probably represent a further infringement.
The most recent developments in cinema entertainment encompass the codified hard drive distribution of films for digital projection in specially equipped cinemas. This will shortly be followed by live digital screening fed by fibre optic cable or satellite connections from a central distribution point to allow world-wide same-day release of the latest blockbuster, which is of course a further publication of any films made and stored on any other form of media.
Copyright Bernard Wallace, Anne Leigh & Ptnrs,
Torre San’Angelo, Montone, PG, Italia, April 2009