Friday, 28 August 2015

Between Protection and the Public Domain Lies a Lifetime (plus 70 years)

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. 

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