Jun 1 2008

Reprivatizing Elvis

E.U. may take a half-century of music out of the public domain

Photo Credit: Flickr Creative Commons/Royce S

Photo Credit: Flickr Creative Commons/Royce S

There aren’t many places where social activists and conservative economists agree, but copyright is one of them. Milton Friedman famously announced that he wouldn’t sign an amicus brief in the Eldred case, which challenged the extension of U.S. copyrights by 20 years, unless it included the term “no-brainer.” It didn’t, but he and 16 other economists signed anyway. The economists and activists lost that one, but their alliance showed how large and complex the battle over copyright has gotten.

The latest battle is over the European Union extending the copyright for recorded performances from 50 to 95 years. It’s not a sexy or mediagenic issue. But on closer examination, it turns out to be an issue about billions of consumer dollars around the world, about influence on artistic expression, even about the remembrance of the 20th century.

In the U.S., recording of performance isn’t different from anything else; the copyright monopoly lasts for the life of the artist plus 70 years, or 95 years in the case of corporate-produced works. In Europe right now, it’s 50 years only. Early recordings of Nina Simone, Joan Baez and Simon & Garfunkel are soon to enter the public domain; much of Elvis Presley and Buddy Holly’s work already has. (In America, “Heartbreak Hotel” will be copyrighted until 2047.) The U.K. debut of the Beatles is only four years from becoming the property of no one—a moment their label EMI no doubt dreads.

In fact, British music companies are working hard to protect their back catalog. They first took their proposal to the U.K. government, hoping to push it up to the E.U. level. They didn’t get anywhere. The U.K. government commissioned a report on the economics of term extension, written by former Financial Times editor Andrew Gowers, that turned out to be resoundingly negative on the idea. Gowers projected the extension would be worth £163 million over the next 45 years for labels and artists. The cost to consumers, who would have to continue to pay to hear what would otherwise be free, was put between £240 million and £480 million.

Rufus Pollock, an economist at Cambridge University and copyright activist, explains the Gowers data this way: “What most people in debating this don’t get is . . . it’s not a zero sum game, it’s a negative sum game to lock up content.” In other words, over time the copyright wall doesn’t transfer wealth, it destroys it. The U.K. government was with Friedman: It was a no-brainer.

The labels sought out a more sympathetic politician to make their case; the proposal is now coming from E.U. Com-missioner Charlie McCreevy. McCreevy’s office commissioned another report on copyright at the E.U. level; it agreed with Gowers in opposing extension. The IVIR report, from the University of Amsterdam, not only recommended against the extension, but went further to say, “Perceived from an international perspective, the American terms are anomalous and cannot serve as a legal justification for extending the terms of related rights in the E.U.” Despite the advice of his own office, McCreevy hopes to start the process of changing the law by this summer.

McCreevy puts forward an argument largely untouched by the finances. In a February 14 speech, he presented it as a question of fairness:

I strongly believe that copyright protection for Europe’s performers represents a moral right to control the use of their work and earn a living from their performances. I have not seen a convincing reason why a composer of music should benefit from a term of copyright which extends to the composer’s life and 70 years beyond, while the performer should only enjoy 50 years.

He also invoked the plight of session musicians living on royalties in their old age. Critics of copyright extension point out that this situation is actually very rare; in fact, the Gowers report noted that “the distribution of this income will be highly skewed, with a relatively small number of performers of successful older works being the major gainers.”

Becky Hogge, a copyright activist of Britain’s Open Rights Group, puts forward a different image of the struggling artist:

Just ask any documentary filmmaker about how hard it is for them to find material they can afford to use in their work. But this is not necessarily money that copyright holders would otherwise earn—those people taking advantage of works in the public domain would simply look elsewhere, or else give up.

McCreevy and others have talked about incentive: Musicians will work harder if they have more to gain. However, 80 percent of signed musicians have nothing to gain; only 20 percent ever see a royalty check in the first place. This retroactive extension makes the least sense of all from an incentives perspective; unless the music industry is working on a zombie serum and recording studio for the undead, it’s impossible to give the deceased an incentive to make more music.

Going forward, it is possible a musician could work harder to provide a steady stream of income for her descendants nearly a century into the future, but it seems unlikely. The record labels, for their part, can argue that they would take more chances on new artists if they knew the potential payout would be bigger, though this overlooks the trend of short-term business behaviors and the diminishing returns of a back catalog.

Still, it’s important to recognize that there’s financial and creative gain and loss on both sides of the issue. Copyright is about balancing the monopoly against the public good, because it constrains expression even while enabling it financially. As time goes by, financial incentives diminish, and society’s uses become more frustrated.

The economic argument against term extension is powerful and exhaustively researched—there is much more value in shorter terms. The value generated by people who just wouldn’t pay full price, but will pay something less, is called “deadweight loss” in economics. This is a very hard number to predict, but Gowers puts the estimate as higher than labels are likely to gain. “It’s money that’s gone,” says Pollock. “It’s taken out and put on the bonfire.”

Gowers also pointed out that extending copyright would benefit American rights holders disproportionately, since American artists get more airtime in Europe than their European counterparts. Extending copyright would mean more payments to Americans by Europeans than to their own.

The impact on the rest of the world is likely to be via the Net. In the written world, works like F. Scott Fitzgerald’s The Great Gatsby are freely downloadable online, despite being under copyright control in the E.U. and U.S.; this is because it’s out of copyright in Australia, and the text is hosted there. It’s still a crime for someone in the U.S. to download The Great Gatsby from Project Gutenberg Australia, but the law is essentially unenforceable. In fact, googling can take you into these works without your having any idea you’re breaking a law. It’s obvious that one of the incentives the music industry has for fighting so hard is that being available in one nation’s online archive is essentially being available in all.

Does this mean loss of revenue for rights holders? Oh yes. This is a matter of direct transfer loss for rights holders. The U.S. population can avoid the deadweight loss also—that is, they can enjoy music that they wouldn’t pay for if it weren’t free—but they will do so illegally, often without the slightest idea that the country they are sitting in has criminalized the link they’ve just clicked.

Perhaps the greatest gain of holding the copyright term where it is—to the national and international community—is the gift to posterity. Copyright ostensibly gives a financial incentive to preservation, but most older works will never make a penny again, and the industry accountants know this. Holdings in the Library of Congress are rotting under the nose of frustrated librarians, faced with the expensive and usually impossible task of rights clearance on the obscurity of the 20th century.

In the Internet age, enthusiasts turn out to be mad and extensive archivists. Fans of the music of every era have gathered around archives, both legal and not, contributing, taking and telling anyone who will listen how great this stuff is. For media that no one is interested in, enthusiasts for archiving itself ravenously and sometimes competitively preserve the past.

But this preservation and celebration of our culture is threatened by the insistence that entrance into the public domain must wait nearly a century or more, until the chance that someone could make a buck off the private ownership of creative works becomes vanishingly small. American archivist Brewster Kahle talks about the 20th century—the age of space, modern war, the computer, etc.—becoming a hole in history caused by copyright extensions and entropy. As we wait for copyright to expire, “the opportunity to capture a record of the birth of a new medium will then be lost.”

It’s hard to imagine future generations will care whether the record companies made the money or the population got the discount. They won’t have had any mash-ups, reissues, covers or cultural studies about the vanished songs. Those performances will exist only in radio waves echoing across the universe.

Quinn Norton is a freelance journalist and photographer based in San Francisco. Her email is quinn@quinnnorton.com.