In battles over the scope, value and morality of copyright three
main players are put in play: the authors (who create the material that can be
copyrighted); the companies (who make money out of those copyrights, through
assignment or ownership); and the public (whose access to these copyrighted
goods can be restricted, dependent on how much the goods cost).
When companies have wanted to
extend copyright they have called upon the figure of the author. This practice
has a long history. In 1710, Britain passed the world’s first copyright law:
the Statute of Anne. This Act, which was concerned with the book trade, set a
time limit on the period for which intellectual property could be owned.
Authors were granted the initial copyright in their works. This right could be
assigned to another party, but its duration was restricted for an initial term
of fourteen years. If the author was still living at the end of this period,
copyright could be extended for a further fourteen years.
Prior to the Statue of Anne, the
Stationers’ Company had dominated the British book trade. This organisation had
reserved the ownership of book copyrights to its members and viewed the
duration of ownership as being perpetual. According to Adrian Johns, the
booksellers were ‘horrified’ by the prospect of a limited term and they
successfully lobbied parliament during the passing of the Statute to have its
proposed authors’ rights reduced.
These booksellers began to think
differently about authors. In the mid-1700s, when the initial 21-year period of
the Statute of Anne was reached, there was a ‘battle’ over the duration of
copyright. On the one side were booksellers from Scotland, who were not members
of the Stationers’ Company. They argued that the Statue of Anne created a firm
21-year limit. On the other side was the Stationers’ Company itself. These
booksellers argued that the Statute of Anne supplemented, rather than replaced,
British common law. Although the Company’s power had originally derived from
Licensing Acts, which had given them their perpetual monopoly rights over the
publishing of books, their claims to ownership were now made via their authors.
They argued that writers had a property right in their works whose duration was
without limit. This right could be assigned, but it could not be curtailed.
Initially, the Stationers were victorious. The author’s common law right was
affirmed in the case of Millar v. Taylor (1769). This ruling was soon
overturned, however. The case of Donaldson v. Beckett (1774) firmly established a set
duration for copyright within British law. In doing so, it created the idea of
an authorial public domain.
Although author’s rights had failed to
deliver the Stationers’ desired aims, the author emerged as the figure upon
which it was best to pin arguments for copyright extension. Lee Marshall has
noted how writers henceforth assumed a central position within copyright law,
signalled by later copyright acts, which began to associate the duration of
copyright with the birthdate of the author, rather than with the date of the
publication of the work. In 1814 the term of copyright was extended to the
author’s lifetime or 28 years after publication, depending upon which was
longer. In 1842 it was extended to author’s lifetime plus seven years or 42
years from publication. By the 20th century it was only the author’s
lifetime that mattered. The 1911 Copyright Act introduced a term of ‘the life
of the author and a period of fifty years after his death’. The 1988 Copyright,
Designs and Patents Act extended this to ‘70 years from the end of the calendar
year in which the author dies’.
This is not to say that authors have
been the main beneficiaries of these changes. Marshall warns us to be wary of
their glorification. He has sated that
the Romantic author is the primary rhetorical tool which copyright
holders use to counter copyright infringement and gain stronger copyright
protection. This is because the centralisation of the author leads copyright to
be understood not as an economic issue but as an aesthetic, and thus a moral,
one.
Siva Vaidhyanathan has stated
similarly that ‘The unrewarded authorial genius’ is the best way of ensuring
‘maximum protection’, while Mark Rose has noted that ‘the notion of the author
as the creator and ultimate source of property’ has been ‘at the heart of the
long struggle over perpetual copyright’. In short, perpetuity seems more
reasonable when the case is being made on behalf of authors, rather than for
the companies to whom their rights have been assigned.
The laws that have benefitted the
publishers of books have also benefitted the publishers of songs. In 1777 a test
case was won by Johann Christian Bach and Carl Friedrich Abel, which
established that ‘a musical composition is a writing within the Statute of the
8th of Queen Anne’. The duration of songwriting copyright
has subsequently been twinned with and reliant upon the campaigning that has
taken place in respect of books.
Sound recording copyright has worked
differently, but here too the Romantic artist has been employed. Performing
artists are rarely the initial owners of sound recording copyright; this honour
is instead more commonly awarded to their record companies. The music
industries have nevertheless been aware that artists are the best means to
extend copyright. In 2004 the British trade journal Music Week launched a campaign to increase
the duration of sound recording copyright from 50 to 70 years. In their
editorial they advised:
Let
us be clear: this is not an issue which affects just record companies. And if
it is presented as such, any attempt at change will be far harder to achieve.
This affects the entire creative community – and that is a message which must
be hammered home.
In placing the artistic community at the centre of their campaign
they made some peculiar claims, arguing that
When
the 50-year term was introduced in the UK, half a century ago, it was intended
to reflect life expectancy. Today, when Britons can expect to live for longer,
an 80-year-old musician cannot earn royalties from the work he recorded in his
twenties – just when he needs the money most. That is a scandal.
While it might have been true that Britons were living longer, Music Week’s
knowledge of copyright history was suspect. The 50-year term had been
introduced in the 1911 Copyright Act, rather than the 1950s. Moreover, sound
recording copyright was explicitly differentiated from copyrights whose
duration was based on the life of the artist. Duration was instead pinned to
the year in which the recording was first released.
There were further oddities about Music Week’s
campaign. Industry insiders and experts were called upon, several of whom
talked about sound recording copyright reverting to artists. Pete Jenner stated
‘Any extension of copyright must benefit the creators/performers. That could be
achieved by giving copyrights back to creators’. Music Week noted that Feargal Sharkey had
successfully ‘regained ownership’ of the Undertones sound recording copyrights.
Sharkey himself suggested that sound recording copyright should follow the
‘rights reversion’ policies of the music publishers.
This idea of reversion came to be enshrined
in law. In 2011 the European Union issued directive 2011/77/EU, which extended
the duration of sound recording copyright to 70 years. Although they pinned
this term to the date of release, rather than the life of the performer, Clause
8 of the directive suggests – erroneously – that the initial ownership of sound
recording copyright resides with artists:
The
rights in the fixation of the performance should revert to the performer if a phonogram
producer refrains from offering for sale in sufficient quantity, within the
meaning of the International Convention on the Protection of Performers,
Producers of Phonograms and Broadcasting Organisations, copies of a phonogram
which, but for the term extension, would be in the public domain, or refrains
from making such a phonogram available to the public.
I welcome the fact
that this directive has provided record companies with a ‘use it or lose it’
scenario regarding their sound recording copyrights. However, the idea that
these rights might revert to artists is bogus. If they do manage to get hold of
them, most of them will be owning them for the first time.
