The following article reflects the Editor’s personal opinions

Sound copyright: under threat yet again?

Every so often the ‘thorny’ subject of the length of copyright in sound recordings crops up in Britain. Just recently a pop group which enjoyed considerable success from the 1960s onwards has been reported as lobbying the European Union to force Britain to raise the protection of copyright on sound recordings from the present 50 to 70 years.

Copyright in all areas of the arts is a complicated and often misunderstood matter. And it is far from being a universal thing: with modern means of spreading knowledge and entertainment in so many forms worldwide, how on earth is it possible to ensure that all the billions in all the countries on our planet abide by the rules?

Rules … what rules? There are no rules which appear to apply everywhere with the same effect. And who is going to bother to enforce them anyway?

Britain is a soft target. Generally speaking when we sign up to the latest edicts from ‘on high’ (otherwise known as the unelected European Commission) we tend to abide by them; our neighbours in the EU adopt a far more sensible attitude – they sign up, but only obey what they consider is beneficial to them.

But I am starting to drift off the point. The important matter which I wish to bring to your urgent attention is that there is a real danger that Britain could be forced to change its sound copyright laws almost by default, unless we all wake up to the threat and realise what it would mean to us in practical terms as music lovers.

The case put by the artists who want to raise the sound copyright limit to 70 years is that they alone should be able to decide how their older recordings should be made available on new CDs or other means of sound reproduction. One can have some sympathy with this view, but this does raise the valid comment:

■ if their recordings are still of considerable value, surely they are already being issued by the original record company that made them, and consequently there would be little money to be earned by independent companies reissuing them yet again.

Sound copyright should not be confused with composer royalties. Many pop groups from the mid-1960s onwards used to record their own material, and the writers can happily count on receiving royalties collected by PRS during their lifetimes – and beyond. When the RFS made its own CD in 1997 – "Captain Robert Farnon and the Canadian Band of the AEF" – we used recordings that were long out of sound copyright in Britain, but we still paid over £230 in royalties to MCPS on the 500 copies we manufactured.

In the USA the term for sound copyright is currently 70 years. It varies in different European countries – sometimes 70 years but even as low as 25 years. What are the main arguments in favour of leaving the law as it stands in Britain?

1. We now have several well-respected independent record companies who have gained international reputations for the quality of their sound restorations of material over 50 years old.

2. Most of the recordings being restored and reissued have been ignored for years by the major companies that first recorded them. Some have even lost them.

3. The new releases are usually attractively packaged with comprehensive booklet notes. The careers of some artists have definitely been extended and even rekindled through the activities of the enthusiasts whose passions have resulted in the reissues.

4. As a judge in the USA commented a year or two ago, modern sound restorations do give an added value to old recordings, making them more attractive than previously. Such work is for the general benefit of music lovers, and it should not be stifled.

5. British readers who were young in the 1950s, at a time when home tape recording started to become affordable, will remember the dire consequences threatened by the BBC on anyone they discovered committing the terrible sin of actually recording their programmes. Today we know how badly they looked after their precious archives, and they now plead with these earlier ‘sinners’ to share their tapes with the BBC. There is a parallel with the fragile 78s issued during the last century: many collectors are no longer around to protect their treasured discs, and time is quickly running out for them to be preserved for posterity. Extending the sound copyright periods could seriously hamper such work, and deprive all future generations of valued examples of our musical heritage.

6. Finally it is a misconception to think that independent record companies are making a fortune from restoring old recordings. Although the actual CDs are becoming cheap to manufacture, the computer equipment to process the 78s or early LPs is expensive – not to mention the cost of actually locating the discs, paying someone to compile them and write the notes, print the booklets, etc. Most of the CDs enjoyed by readers of this magazine probably sell under 1,000 copies: hardly something that politicians should be wasting their time worrying about.

If the worst happens, and a change in the law is considered to be desirable, then I hope that it will not be made retrospective, and that there would be a period of several years before it came into force. Although I do not advocate it myself, I can imagine a situation where some people might feel that the improvements in sound recording which took place at the time might make it equitable to allow recordings from 1960 onwards to be subject to copyright protection for longer than 50 years, but to impose this before then would, in my humble opinion, be a most regrettable and retrograde step.

One final thought: some countries have a Freedom of Information Act, and the idea is spreading. Is this just flannel, or is it intended to mean something substantial? It does appear that there are many people who regard such liberal trends with great suspicion, and I submit that the extension of sound copyright would be a blatant example of going against the aforementioned aspirations.

I hardly need to state that I have a vested interest in this important matter, because my aim is to make available many recordings of light music that have been simply ‘lost’ or ‘forgotten’ by the companies that originally made them. It just so happens that a lot of these ‘treasures’ date from around 50 years ago, and to be prevented access to them would be a serious loss to music lovers around the world. For example, the Guild ‘Golden Age of Light Music’ series would never have been created.

My own vested interests pale in comparison with the vested interests of the parties who would like to change the law. One famous example is The Beatles, whose earliest recordings date from just after 1960. Probably money could still be made from attractive repackaging of their material, but should this be regarded as a strong enough reason to enforce a blanket ban on all the other recordings from that period which have been neglected by the record companies?

I would emphasise again that this article represents my personal view, and it must not be taken as the policy of the Robert Farnon Society. Nevertheless I strongly believe that the interests of our members are at risk, and I feel justified in using our magazine to bring it to your attention. I hope that some of you will join in this debate and let me have your own views, which I will be happy to print in a future magazine. If you disagree with me, please don’t hesitate to say so, and tell me why you think I am wrong to be concerned. However if you agree with me that this is a matter which should be of some concern to us all, then I urge you to make your feelings known to your local MP and especially your MEP (Member of the European Parliament). You can also alert the press, both national and local, and raise the subject if you enjoy taking part in radio talk shows.

I would like to think that our political masters have far more important problems to deal with at the present time, but experience has shown that this is just the kind of unfortunate legislation that can slip through ‘on the nod’ by a small group of tired people anxious to dispose of reams of paperwork without protracted arguments. The case to extend the period of sound copyright can seem fair to people unaware of the complete picture. Unless we ensure that a proper, reasoned debate takes place, we could all lose out on an area of the record business that is presently giving us a lot of pleasure.

David Ades

from Journal Into Melody : September 2004

Sound Copyright : a follow-up to the Editor's article in the September 2004 issue

My article in our last issue has provoked many comments from RFS members, most of them along similar lines, saying … "we hope things stay as they are." Some members have kindly taken the trouble to expand their concerns more fully, and a representative selection appears below.
There are continuing press reports of individuals and organisations asking for the sound copyright period to be extended from 50 to 70 years in Britain, with most of them latching on to the fact that the earliest Elvis Presley recordings are now 50 years old. I suspect that these gripes will continue to rumble on for years, and gain fresh momentum when the Beatles' records attain their half-century soon after 2010. The media cannot be relied upon to give objective reporting: a Channel 4 News report in September failed to grasp the complexities of the subject.
The future of many Light Music compilations is at stake, but I am not going to repeat the arguments I put forward last time: all I would ask is that any readers who did not see my article in the last Journal Into Melody should try to read it if this subject is of some concern to them. It can also be viewed on our website. Now here are some of the letters that have come in.

from Mike Ellis:
I write to congratulate you on your erudite article concerning the above. I can only agree wholeheartedly with your remarks. Indeed, I would go further.
You mention the case put forward by artists who believe that they alone should be able to decide how their older recordings should be made available. Cynically, I suspect this is a ruse on the part of many of them to squeeze as much cash out of them as possible. The most obvious case is Steve Lawrence and Edyie Gorme, who own their Columbia and United Artists masters. They refuse to allow the original company to reissue their classic albums, but prefer to do it themselves on their own label. Although, as a purist, I would rather have the original company produce the reissue, I could live with this except the fact that this route leads to excessive prices and limited availability. It is virtually impossible to purchase these CDs in shops and the cost of each CD from the few shops that do carry them, or on the internet, is in excess of £25.00 each! Is this fair on the many collectors who have supported them over the years? Most of us are retired and on limited incomes, so this is a counterproductive move.
Similarly, the recordings of Don Cornell are owned by the artist's family and, again, they were issued on their own label and only available at his concerts or from them direct by mail order, requiring an International Money Order, incurring considerable additional expense. In both these cases, the original company would (if allowed) have been able to release them at mid-price and made them freely available.
In another instance, Tony Bennett has resolutely refused, for many years, to allow his early albums to be released on CD because, in his view, they do not gel with his current image. Only recently has he relented and allowed his first Columbia album to be transferred to CD. In a recent article, Sue Raney expressed regret that her first two Capitol albums had been released on CD, presumably because they do not (in her opinion) match what she is doing today.
In all these cases, I respect the views of the artists although I cannot agree with them. If it were left to them, many superb albums would never have seen the light of day and we would be the poorer for it.
There is also a related aspect. As many will know, CDs are more expensive in the UK than elsewhere. Many internet retailers redress this balance by offering US releases at lower prices than the UK version. The music industry became very upset by this and hit out at these retailers with legal threats. The result of this is that most of these retailers now only carry UK releases. It is not for me to comment on the allegations of 'rip-off" Britain, but an unfortunate side effect is that we no longer have access to those US CDs that have never had a UK release. My view is that the BPS action should only relate the CDs where there is a freely available UK release.
At the end of the day, the major labels are now less and less interested in releasing their back catalogue, and yet they make it very difficult for the independent labels to licence them, requiring quite unrealistic minimum orders. The fact is that we collectors are getting fewer and fewer each year and both artists and companies should be looking for ways to sell that back catalogue before it is too late.

from John Harmer:
The possibility of sound copyright being extended is a worry, as I am sure that there are many of us who are unable to have access to recordings from the Chappell library, other than on new CDs such as the Guild, Vocalion and Living Era releases.

from J.J. Olivier:
I fully agree with the Editor's comments about sound copyright. I hope that these negative ideas will not materialise. For me, personally, it would be the saddest of days if I were to be deprived of the CDs of the most beautiful music that I now have the privilege to own. I do hope that the people wanting to change the law will not succeed, and that I will continue to be able to enjoy the light music reissues.

from Nicholas Briggs:
The article on Sound Copyright makes very interesting, if disturbing, reading. It is probably best to buy up what one can now whilst things are still available!

from David Turner:
Just a note to say thanks for the excellent article on Copyright and PRS etc. You encapsulated a complex subject into 'easy read'... This type of explanation has been long overdue. I thoroughly agree with your observations. To deprive lovers of 'our music' would be unacceptable, especially if the original companies are not prepared to keep them in the catalogue.

Editor:
Shortly after my article in our last issue had been sent to the printers, I was made aware of a report on the internet which hopefully indicates that the European Union are not, at present, likely to bow to pressure from certain sectors of the music business in Britain. I am repeating relevant parts of this report below, and feel that further comment at this stage is unnecessary - except to say that this is a matter which must continue to demand our attention, in case an absence of discussion should ever be taken as tacit agreement to an extension of the present sound copyright period. The report on the internet begins:
After the European Union had harmonized the copyright term of its Member States' copyright laws to 70 years post mortem auctoris, the United States enacted the Sonny Bono Copyright Term Extension Act in 1998. By this act, the general copyright term in the U.S. of 50 years p.m.a. was extended to 70 years p.m.a. as well. One of the main reasons for this extension was the argument that the U.S. had to catch up with the EU in order to ensure the competitiveness of the U.S. content industry worldwide.
For several kinds of sound recordings, the U.S. now even provides a copyright term of 95 years from the year of first publication. By contrast, the EU Copyright Term Directive only provides a protection of 50 years from the date the recording is made. It is no surprise that content owners have recently been pushing the EU to extend its protection for neighbouring rights such as sound recordings to 95 or at least 70 years as well. One of the main arguments for this extension is that the EU now has to catch up with the U.S. in order to ensure the competitiveness of the European music and recording industry worldwide (sounds somewhat familiar...).
A recent document by the European Commission indicates that the Commission does not intend to participate in this never-ending race towards longer copyright terms any more. In a staff working document which dates from July 19, 2004 and reviews the European acquis communitaire in the field of copyright law, the staff of the copyright unit of the Commission writes: "It is feared that an extended term of protection would only tend to diminish the choice of music on the market by enforcing the flow of revenues from few best-selling recordings, while at the same time not providing any real new incentives for creation of new recordings or motivating new investment. It has also been pointed out that practically all developed countries, with the exception of the USA, apply the term of protection of 50 years. As to the need to achieve parity between the EU and the USA, it has been argued that the same term of protection would not result in equal economic benefits for the right holders in these two territories. On the contrary, due to a different approach to which uses of phonograms are remunerated, US right holders already benefit from a better protection of their recordings in Europe, and the extension of the term would only aggravate this divide. [...] it seems that public opinion and political realities in the EU are such as not to support an extension in the term of protection. Some would even argue that the term should be reduced. At this stage, therefore, time does not appear to be ripe for a change, and developments in the market should be further monitored and studied."
At least in some cases, the voices of copyright critics seem to be heard.

David Ades : November 2004