Music industry's absurd approach to copyright

The music industry's approach to copyright is disingenuous and absurd, says William Davies

For the last few years, the British music industry has been arguing furiously for an extension in copyright term for sound recordings from the current 50 years to match the US term of 95 years. The lobbying has grown more intense since the launch earlier this year of the Gowers review into Britain's intellectual property (IP) framework. And the industry's voice will undoubtedly grow louder as 2012 approaches, the year the first Beatles record falls out of copyright. The US extended copyright term in 1998 from 70 years, and companies are optimistic about pulling off a similar coup on this side of the Atlantic. But their arguments for term extension flip disingenuously between threats and pleas for protection.

In the first category sits the typical threat issued by multinationals to governments-exit. Companies like EMI claim that without longer terms of copyright, they will be forced to relocate to places where they receive greater legal support, destroying 300,000 British jobs in the process. But economic logic is stacked against this argument. IP only makes sense in the first place as an incentive to innovate. True, Lennon and McCartney needed to believe they could make a living off their songwriting, while EMI needed to be sure it could recoup its costs and make a decent profit on top. But none of this took place on the basis it would provide a decent revenue stream 50 years hence. Equally, it is absurd for Eric Nicoli, chair of EMI, to suggest that, "the work of recording artists and producers in Europe is at a growing disadvantage to the US. " Is he suggesting that investing in new music is only worthwhile if it is still played in 2070?

The enduring popularity of the Beatles is the exception rather than the rule. Most innovation, musical or otherwise, ceases to be commercially profitable within far shorter time horizons. In 2002, 17 leading US economists found that term extension in the US was likely to deliver only an extra 0.1 per cent in revenue to rights-holders. The likely loss to the public, meanwhile, would be far greater, including the loss of new business models based on reworking or republishing music once it has entered the public domain.

With economic logic against them, the music industry opts for plan B: play the underdog. The industry has hidden behind one of its fluffier allies in this debate: non-songwriting performers. As the law stands, songwriters receive copyright protection for life plus 70 years, but performers on a record are only protected for 50 years after the recording; the same term as the publishers. This year has seen a flurry of campaigns led by Cliff Richard and others, appealing for sympathy for those impoverished session musicians who are about to be denied royalties for performances they gave half a century ago.

The music publishers nod sagely in the background. Peter Jamieson, chair of the music industry trade group BPI, recently suggested that ageing musicians "are effectively being told they are too old to claim their pension. " How copyright became a part of the pensions framework is a mystery. Did anyone tell Adair Turner? Finally there is the "ecological" argument. According to this vision, EMI is a crucial node in a network that includes children experimenting at school, cover bands playing in pubs and international artists like Robbie Williams. It is this notion above all that enables multinational companies to pose as the big guy when they need to issue threats, and to line up alongside the small guy when it suits them to beg for mercy. Mess with EMI, government is warned, and you mess with the essence of British music.

The reason this mysticism is allowed to persist is that we still don't know enough about the creative industries. We need to know more about how to nurture entrepreneurship in specific sectors, and what the most innovative IP model would be. We need to lower barriers to entry, and to exploit the potential of new media to do so. We don't know enough about the risks and benefits attached to new sorts of IP licence, such as creative commons. Each sector is different, and the differences between large and small companies may be greater than their similarities. To his credit, James Purnell, creative industries minister, is acting to plug these evidence gaps. But it is becoming increasingly clear that large music companies will wear whichever clothes it suits them to succeed, and governments-and Gowers-must be smart enough to see this.

First printed in The Quarter, Summer 2006