Term extension and respect for artists: a reply to Michael Geist

April 23rd, 2015 by Barry Sookman Leave a reply »

On Wednesday, the government announced an extension of the term of protection for performers and makers of sound recordings, increasing the term from 50 years to 70 years. The announcement was widely applauded by Canadian artists, such as Randy Bachman, Bruce Cockburn, Leonard Cohen, Cowboy Junkies, Jim Cuddy (Blue Rodeo), Kardinal Offishall, Serena Ryder, Tom Cochrane, Gordon Lightfoot, Loreena McKennitt, and Triumph, and by organizations representing artists and makers of sound recordings, including the Canadian Independent Music Association (CIMA), Music Canada, and the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA).

Leonard Cohen expressed the sentiments of many artists in saying:

In just a few short years, songs we recorded in the late 1960s will no longer have copyright protection in Canada. Many of us in our 70s and 80s depend on income from these songs for our livelihood. We would deeply appreciate any adjustment that would avert a financial disaster in our lives.

Michael Geist, a long-time advocate of weaker laws for artists and makers of sound recordings and loopholes for those wanting to use their creations without compensation (see, here, here, here, here, here, here, here, here, and here), was quick to criticize the proposed amendments in a post the day after the proposal was announced and in another one earlier today. Unfortunately, many of his assertions are inaccurate or do not stand up to scrutiny.

He claims that the copyright term extension is “unexpected and unnecessary” and came out of the blue. The government  explained why the term extension is necessary and timely now for Canadian artists and rights holders:

The mid-1960s were an exciting time in Canadian music, producing many iconic Canadian performers and recordings. While songwriters enjoy the benefits flowing from their copyright throughout their lives, some performers are starting to lose copyright protection for their early recordings and performances because copyright protection for song recordings and performances following the first release of the sound recording is currently provided for only 50 years.  Economic Action Plan 2015 proposes to amend the Copyright Act to extend the term of protection of sound recordings and performances from 50 to 70 years following the first release of the sound recording. This will ensure that performers and record labels are fairly compensated for the use of their music for an additional 20 years.

Recordings from 1964 have already been lost to performers and rights holders, and unless the Canadian government acts now, the golden age of 1960s recordings would meet the same fate. This past year, artists and record label rights in iconic Canadian songs such as Ian and Sylvia’s Four Strong Winds and Oscar Peterson’s Night Train album have been lost. Hence Leonard Cohen’s concern about his 1960s recordings being lost to him; Randy Bachman, co-founder of the iconic Canadian 60s group the Guess Who, expressing his gratitude; and artists who have recorded in all decades recognizing the necessity and timeliness of the amendments.

Michael Geist’s claim also overlooks that more than 60 countries internationally have increased their copyright terms to 70 years or more, many of whom have done so in the last few years (including members of the EU) to prevent hundreds of iconic recordings of their nationals from the 60’s, including in the U.K. the Beatles, the Who, and the Yardbirds, from falling into the public domain. The government and Canadian artists recognize that if Canada were to wait years for a new reform process to drag on Canadians would be the losers.

Michael Geist seems to suggest that because a separate copyright exists in the musical work (the written song), artists such as Buffy Sainte-Marie shouldn’t be concerned about losing copyright in their performances and sound recordings. There are situations in which the composer/lyricist and artist is the same person. In that case, he/she would be entitled (under Canadian copyright law) to royalties from the musical work and from exploitation of the sound recording containing the performance. However, if the sound recording falls into the public domain, the sound recording based royalties, which are important sources of income for artists, are lost. Critically, however, what Geist fails to explain is that frequently the composer/lyricist and the artist (and other performers) are not the same people. Numerous people may perform on a recording, and only one, or none of them, may receive songwriter credit. Therefore, when the term of copyright in the recording expires, the songwriters may continue to collect royalties, but the remaining performers gets nothing. This is the unfairness and hardship that artists and the government understand, but which Michael Geist does not take into account. Based on his views, if you are in the music business, you have to hope you’re the songwriter and can make a living on songwriter royalties alone when you stop receiving your performance royalty checks in your old age – when you can’t tour or sell tee-shirts to make ends meet. Even famous artists like Leonard Cohen deeply appreciate any adjustment that would avert a financial disaster in our lives”.

Michael Geist argues further that the performance rights are often held by recording companies and not the artists. The record companies, of course, obtain the rights that are necessary to make and sell copies of, and to make available, sound recordings that embody the artists’ performances. In return, the record labels give artists advances and pay artists royalties in respect of these rights. Performers and makers of sound recordings also receive equitable remuneration for public performances (performances in public and communications to the public) of the sound recording including when a song is streamed through a music streaming service, or is played on radio or as part of background music. The artist (and other performers) receive these royalties (via collectives). But, importantly, if the term of protection in the sound recording expires, these royalties dry up. The government fully recognized this when it explained that term extension “ensures that performers and record labels are fairly compensated for the use of their music for an additional 20 years.”  The artist/performer needs this income to live and to continue to produce new music. The record label uses the proceeds to recoup investments in artists and to reinvest in new and emerging artists.

Michael Geist claims that a “retroactive term extension” does not lead to increased creation”, could cost  Canadian consumers “millions of dollars” and that works “that were scheduled to come into the public domain will now remain locked down for decades”.

In support of these claims he relies on the U.K. 2006 Gowers Review on Intellectual Property. Andrew Gower’s recommendations were rejected by the U.K. Government, with UK Culture Secretary Andy Burnham stating that “70 years is a fair length of term because…the benefits go back to performer”. The findings and recommendations of the Gowers report (which included a section on term extension) were comprehensively reviewed by the EC Commission, along with other independent studies.[1] The EC Commission rejected the findings and recommendations in the Gowers review and recommended that the EU extend its copyright term for performers and makers of sound recordings from 50 to 70 years. Two thirds of EU Members States, including the U.K. (which had commissioned the Gowers Review) agreed with the EC Commission (and not Gowers) and voted in favor of EC Directive 2006/116/EC.

Michael Geist also refers to “many more studies and reports”. These are merely an “open letter” by an individual on a blog, a one page article from a law firm Out-Law.com, a “joined academic statement” and an academic paper presented at a conference. See, Chris Castle, World Watch:  Canadian Government Closes Big Tech’s Back Door Loophole.

Michael Geist likes to use the emotionally charged metaphor of content being “locked up” or “locked down” because of copyright. Yet, he provides no support for the contention that old repertoire will somehow be “locked down” or become inaccessible because of this term extension.  In fact, as economist Professor Marcel Boyer pointed out in a study he did for Industry Canada which included assessing the impacts of a term extension for photographs, Assessing the Economic Impact of Copyright Reform, copyright holders have every incentive to ensure that their content is widely available to the public:

Many observers fear that the current proposals for copyright reform will make access to significant number of ‘old’ works very difficult.  But the contrary may be closer to the truth. Insofar as the copyright owners are interested parties in making their works accessible to large public in order to derive revenues from them, one may expect that different arrangement will emerge so that as many users as possible and profitable can have access to a large number of high quality copies of “old” copyrighted works than it is the case now.

Professor Boyer also noted that “an increase in lifespan of the copyright may be justified by the fact that life expectancy has increased significantly. If it was reasonable to have a 50-year term in the past, it may be justifiable for the same implicit reasons to have a longer term now and in the future.”

Michael Geist’s claim that term extension will not lead to increased creation was specifically rejected by the EC Commission and by a study by LECG Ltd, which found that the retained earnings produced from the sale of older repertoire would be used to finance investment in new artists and recordings.

Michael Geist claims that the proposed term extension “could cost Canadian millions”. Yet, he cites no economic evidence suggesting that any of the predictions of higher prices in the “studies” he referred to have come true. His predictions are contrary to the findings of the EC Commission and the empirical economic evidence on which it relied, which found that prices to consumers for sound recordings out-of- copyright would not be different from those in still copyright. In fact, the Industry Canada commissioned Hollander’s study he referred to (which examined the implications of complying with the term provisions in the WPPT and not, as he implies, with the general economic implications of an increase in the term of protection for sound recordings from 50 to -70 years, as he lets on) was that overall, an increase in a term of protection for sound recordings would not affect users.

Michael Geist’s opposition to the government’s term extension plan overlooks other reasons for the term extension referred to in my prior blog,including that it:

  • Addresses performing artists’ income gap
  • Promotes investment in new artists
  • Benefits consumers
  • Addresses inequality between songwriters and performing artists
  • Promotes digitisation and marketing of back catalogues
  • Benefits cultural diversity
  • Enables performers to protect their moral rights

Michael Geist’s argument also overlooks that countries that have major domestic markets for music and which are major producers and exporters of music such as Canada – with internationally famous artists such as Bryan Adams, Celine Dion, Michael Bublé, and Nelly Furtado – benefit from term extensions that conforms to international norms. It enables domestic artists and record producers to continue to receive domestic revenues from sales of recordings, which they can reinvest in new talent. It also enables them to earn more revenues for an additional two decades in foreign markets such as the EU, Argentina, India, Korea, and Singapore, where terms of over 50 years are only recognized on a reciprocity basis.

Michael Geist speculates that the proposed term extension has something to do with the TPP negotiations. He seems to see TPP ‎under every rock. He doesn’t, however, appear to have considered a much more plausible alternative: the government respects artists and their music and decided to act before it was too late.

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[1] EU Commission, “Impact Assessment on the Legal and Economic Situation of Performers and Record Producers in the European Union”, SEC(2008) 2288. The Commission stated that in addition to it’s own analysis it “also analysed other independent studies such as the “Gowers Review of Intellectual Property” (2006) in the UK, “The Economy of Culture in Europe” (2006), by Kern European Affairs, “Performers’ Rights in European Legislation: Situation and Elements for Improvement” (2007), by AEPO-ARTIS, “What are the Consequences of the EU extending Copyright Length for Sound Recordings” (2006), by Liebowitz, “The Impact of Copyright Extension for Sound Recordings in the UK” (2006), by Price Waterhouse Coopers, “Review of the Economic Evidence Relating to an Extension of the Term of Copyright in Sound Recordings” (2006), by the Centre for IP and Information Law.”

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