Community Chest

When campaigners have wished to curtail the duration of copyright they have called upon the public. This practice is as old as copyright law itself.

The Statute of Anne (1710) is titled ‘An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies, during the Times therein mentioned’. The time being referred to is the term of copyright, which was set at a period of 14 years and could be extended by a further 14 years if the author was still living at the end of the initial period.

The Act also indicated how it would encourage learning. Copyright would inspire writers. It would motivate ‘learned men to compose and write useful books’ because they would now have some legal assurance of getting paid. In addition, the restricted duration of copyright would boost reading, as it would lead to cheaper books. Books in copyright would be monopolistically owned: an author would have the ‘sole right’ to their books, while any bookseller to whom they assigned that right would have ‘the sole liberty of printing and reprinting such book’. Although monopolies drove up prices, the public domain would bring them down. Expiry of the term of copyright would give any bookseller the liberty to reprint the work; the ensuing competition would result in lower costs.

The price of books had been a genuine concern. Prior to the Statute of Anne, the old licensing laws had given members of the Stationers’ Company monopoly rights to book titles. When they were due for renewal in 1693, a group of peers protested about the law, stating that it ‘subjects all Learning and true Information to the arbitrary Will and Pleasure of a mercenary, and perhaps ignorant, Licenser; destroys the Properties of Authors in their Copies; and sets up many Monopolies’. The Statute of Anne aimed to curb the practice of these mercenaries, not only via limited copyright duration, but also via a clause that allowed any ‘person or persons’ to raise a complaint to the Lord Archbishop of Canterbury about any book whose price they deemed to be ‘too high and unreasonable’.

Copyright law therefore aims to achieve a balance. It has raised monopolies in order to protect the interests of authors, and it limits them in order to make their works affordable. This idea was carried through from British law into the American Constitution, which talks of promoting ‘the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries’. It can also be seen in the Universal Declaration of Human Rights, which counters ‘everyone has the right freely to participate in the cultural life of the community’ with ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which they are the author’. In 1841 Lord Macaulay made what is perhaps the most famous case for this balance. In a speech to the British Parliament he argued that:

Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. .... The effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. ... It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.

Mark Rose believes this statement is a ‘standard point of reference in discussions of the history of copyright’. It should be noted, however, that Macaulay was campaigning against an extension to copyright. It is therefore natural that the people who refer to him most are those who wish to free copyright from the extensive grip of monopolies. This includes Andrew Gowers, who quoted the speech in his 2006 Review of Intellectual Property. This report rejected an extension to sound recording copyright in Britain. Gowers argued that a properly functioning copyright system is one where ‘incentive to innovate is balanced against the ability of follow-on innovators to access knowledge’.

I think Gowers was right. If copyright is supposed to both inspire artists to create and enable audiences to access their work, extending the duration of sound recording copyright from 50 to 70 years would be of little account to either cause. I’m not sure that Macaulay was the best person to turn to, however. There is a lacuna in copyright debates. Campaigners against extension have made excellent analyses of the figure of the author, looking at the ways that corporations have hidden behind artists’ rights in order to achieve their own ends. In contrast, the effects of copyright upon the public have received less attention. Although campaigning centres upon the idea of ‘access to knowledge’, there is little investigation of how access works in different artistic fields.

Macaulay was arguing against claims for copyright extension that were being made in respect of books. Books work differently to music. Monopolies do make them expensive. Despite the textual expansion of the internet and a continuing tradition of book readings, the most common way of accessing a book is to pay for it: the majority of the trade takes place between businesses and consumers. As a result, a book that is in copyright will almost always be more costly than one that is in the public domain. In fact, in arguing that the public domain leads to cheaper prices, Gowers used the book trade as his example, even though this was in a section of the Review of Intellectual Property that was debating the merits of sound recording copyright extension. 

It should be noted, however, that there is a lot of ‘free’ music that is within copyright. Or, to put it another way, the public enjoys a lot of music without having to make a direct monetary exchange. We get to hear music for nothing on the radio; on television; in the cinema; in shopping malls; in bars, pubs and clubs; and on much of the internet, whether we are pirating or not. Many monetary transactions relating to music take place business-to-business, rather than business-to-consumer. According to PRS for Music figures from 2011 these business transactions make up nearly a third of the market for music in the UK. The value of B2B income for the music industries in that year was £1,057m, while B2C income was £2,736m (split £1,112m for recorded music and £1,624m for live music).

We do, of course, end up paying for much of this B2B music in other ways. If music is being played for free by a public broadcaster, its costs form part of the licensing fee. If it is free because it is advertising-funded, we bear the cost of that advertising in the goods we are encouraged to buy. Similarly, if music is being played for free in public premises, we pay for it indirectly via other goods that the retailers are selling us. There is also a human cost. We are denied agency: businesses choose our music for us, and they choose songs that best underpin their own needs. Moreover, we need to be aware that on many occasions when we hear music without paying for it, it is us who are being sold to advertisers.

Music’s monetary waters are muddied further when we begin to think about monopolies. There are situations when monopolies actually help to keep costs down. Most of the music that we hear over airwaves and through public address systems is paid for via blanket licences. The users of music don’t licence it directly from publishers and record companies, they instead use collection societies. In most countries there is just one collection society for each of the principal streams of income. There will be a society that collects public performance income on behalf of songwriters and publishers; a society that collects public performance income on behalf of record companies and recording artists; and a society that collects ‘mechanical’ income - money from record sales and other uses of recordings - on behalf of songwriters and publishers (the record companies act for themselves when it comes to collecting their own mechanical income and the royalties from recording sales that are due to their artists). In Britain these societies are PRS for Music, PPL and MCPS, respectively. They operate as monopolies.

One effect of blanket licensing is that all music costs the same. The BBC pays as much to play a track by the Beatles as it does to play a track by Bogshed (this is one of the reasons why it tends to use such well known music in its own promotional films). Some of the collection societies are more monopolistic than others, however. The writer members of PRS assign the performing right in their works to the society. PRS therefore ‘owns’ this right and can offer its whole repertoire of works to the broadcasters and premises it has licensing deals with. In contrast, MCPS merely administers the mechanical right. Its relationship with songwriters is instead enshrined in its Membership Agreement, which covers a number of standard and blanket licences. While PRS controls all aspects of the performing right on behalf of its members, there are some areas where MCPS members can opt out of blanket licences and instead negotiate directly with users. This includes music for films, adverts and some commercial TV broadcasters. One reason why members choose to operate in these areas is because they can negotiate higher fees. Here monopoly breaks down and the Beatles will cost more than Bogshed. PPL’s monopoly is also limited. It collects money from public premises and from broadcasters but generates little online income. The majority of this licensing is instead carried out directly by the owners of the sound recordings. PPL argue that this ‘reflects the prevailing view of record companies that downloading and on-demand streaming is analogous to the distribution of sound recordings, a traditional record company function’. Moreover, if you want to use a sound recording in an advert or a film you will have to negotiate directly with its owners. If you want to use a major star or a big hit this will cost you dearly.

As the income from recorded music declines, the money that can be made from licensing becomes more important. Consequently, some performers are seeking greater control of their rights. Artists such as Prince have successfully gained ownership of their sound recording copyrights. While most record companies use PPL to licence their catalogues of recordings to radio and TV at standard rates, and they will have their own blanket licences in place with streaming services, artist owners are more likely to operate in a restrictive manner. The performers whose music is not available on internet platforms such as YouTube or Spotify generally fall into two categories. There are artists who own their copyrights and there are artists who have the status to negotiate contractual clauses about licensing rights with their record companies. Although in each case they are standing up to monopolies, this does not result in music that is cheaper or more readily available.

In addition, there are publishers who are choosing not to be members of MCPS. They believe there is more money to be made if they avoid the collection society’s blanket licences. Recently the BBC announced that it would no longer be able to play music by Neil Young, Bonnie Raitt, Journey and the Doors. It was introducing a new iPlayer radio app, which would provide users with the opportunity to listen to BBC radio offline. Wixen music, the publisher for these artists, was not a member of MCPS and therefore the BBC was not covered in respect of this new mechanical distribution of their music. The publisher had decided to forego membership because they felt they could more profitably negotiate television rights for their artists’ songs independently. The situation was eventually resolved via an one-off agreement between Wixen, the BBC and MCPS. The case does, however, highlight the fact that it is not always monopolies who make music scarce or dear. On the contrary, in modern times this fate is more likely to befall music that has escaped the collection societies’ monopolistic demands. 

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 20^th 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 8^th 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.