Features

net.wars: Ninety-five

This week the European Commission decided to ignore protests and economic evidence, and came down in favour of the record companies and adopted a proposal for term extension in sound recordings (PDF) to 95 years instead of the current 50 years.

There is one almost good thing in the proposal: that when a recording is due to enter the public domain the publisher has one year to use it or lose it – and losing it means the rights will revert to the performer. If the performer also doesn't use it, then it comes into the public domain. I say "almost good" because that reversion of rights needs to happen much earlier in the life of a recording; rights should revert, as they do in book publishing, when the company takes a recording out of commercial release.

The rest is a batch of justifications for giving the record companies what they want based on the very real and very terrible economics of most musical careers. These bad arguments are begetting wrongheaded debate.

Ars Technica, for example, has chosen to complain that the proposed extension smacks of grotesque entitlement

But this is wholly unfair: in general the push for term extension is not coming from musicians but from record companies. And that article's complaint that musicians should have made provision for their old age the way everyone else has to is undercut by the figures quoted a few paragraphs later. The couple of thousand pounds (that represents the high end of what an "average" pensioner musician might receive according to McCreevy's estimates) might help them buy a new condensing boiler one year when it gets cold. It's not going to make the difference between poverty and a comfortable life.

Even if we were talking about riches, though, that particular argument, if followed to its logical conclusion, would do away with copyright altogether: if it sounds like special pleading to ask for term extension to fund retirement, then surely the same must be true of the money received during the first 50 years of copyright.

PWJs – people with jobs – may not see why a musician recording a song should be different than a plumber installing a bathtub. Even some of our own don't. The late journalist John Diamond used to say you don't pay the plumber royalties every time you use a bathtub he's installed, not even if people buy tickets for the privilege of seeing it.

But royalties are a trade-off; in return for shouldering the considerable risk of a creative career creators get the right to exploit their work. It is some incentive. But it's not why people try for artistic careers, since people do this – and fail at it – by the thousand. The odds are terrible: the proposal itself notes that only 5 percent of performers make a living from their profession. Over all the point every musician would make is that if someone is going to be making money out of their work they feel they deserve some of it.

Royalties from sound recordings are part of what at least theoretically makes a full-time professional musical career possible. This is the bargain society made in allowing copyright in sound recordings in the first place. It is not about paying people pensions. The proposal estimates that term extension will mean continued payments to approximately 7,000 musicians in the larger EU countries; if we simply want to support retired musicians it would be cheaper to let the state give them a handout.

A more reasonable argument is to say that when today's 70-somethings went into the studio in 1958 – and when the record companies paid them to do so – they made a contract with society that after 50 years their recordings would go into the public domain.

There certainly is now no question of incentive: if term is extended they can't retroactively decide to have recorded more back then. Generations of musicians since have gone on recording and the record companies are not complaining that it's difficult to find people who will accept "only" a 50-year term of copyright. Whining that they don't like the terms of the social contract now should bear as little weight as someone in a divorce hearing claiming they signed the pre-nup without reading it.

But these are negative arguments. The more positive arguments have come from for example the Gowers report, which argued against term extension on economic grounds. These are being ignored. My favourite bit of the Commission's proposal is the completely backward bit that argues that there will be no difference to consumers because public domain recordings do not sell for less than copyrighted ones – and anyway it doesn't matter because there are plenty of alternative noises people can listen to.

The good news is that this is the last time the recording industry will be able to claim that it is lobbying for term extension to benefit artists. Unless the anti-aging folks get a miracle together, 40 years from now, when these recordings are nearing their new expiration date, all the artists will be dead.

Trying to garner sympathy for their heirs will be a lot weaker argument, emotionally speaking.