YOUR ENJOYMENT OF VINTAGE LIGHT MUSIC
COULD BE AT RISK
Take a look at your CD collection
and note which ones contain recordings between fifty and
seventy years old. To give you a clue many releases
by (in alphabetical order) Guild, Jasmine, Living Era, Naxos,
Pearl and Vocalion fall into this category and there
are many more small British independent labels similarly
affected. The major record companies are supporting attempts
by ageing pop stars to get the period of sound copyright
extended beyond the present 50 years, which would deprive
many music lovers of a large amount of music. The British
Government set up a committee to investigate the whole subject
of copyright, and invited members of the public and interested
parties to make their views known.
As the 21 April deadline for submissions
to the Gowers Review approached, British radio and television
audiences were subjected to a barrage of reports which were
high on emotion, low on serious discussion, and notable
for presentation of one-sided and questionable statements.
Hopefully the educated people chosen by the Government will
have approached their task with an open mind, in which case
some of the submissions received from members of the Robert
Farnon Society will have received fair consideration. No
doubt this subject will rumble on for many months, as pressure
groups attempt to sway the outcome, so in order to achieve
a balance we reprint below part of the documents sent in
by Alan Bunting and your Editor. If you agree with some
of their comments, you may wish to make your feelings known
to your MP, MEP or the press if it seems that there is still
an opportunity to influence the final outcome.
David Ades began his submission by questioning the motives
behind the current pressure groups seeking a change in the
I am concerned to note that there
appears to be considerable pressure building up for an increase
in the present 50-year period for sound copyright in the
United Kingdom. Reports in the media indicate that certain
people in the music business (1960s pop groups have been
specifically mentioned) are lobbying the Government for
a change, but what particularly worries me is that the public
are being fed information with is often one-sided and shallow.
I have yet to see a report on television which attempts
to deal with this important matter in a serious manner,
since there are far-reaching implications involved.
Sound recording has
been around for well over 100 years. Why has the question
of sound copyright suddenly arisen? In my view the copyright
act of 1988 was a sensible piece of legislation which struck
a fair balance, and I cannot accept that a change is now
necessary. Of course, the entertainment business thrives
on publicity, and the cynical among us might believe that
the current controversy is doing some aged pop groups no
harm. But to suggest that they are about to lose a significant
amount of income when their original recordings are more
than 50 years old is questionable, to say the least.
The public are not
being informed that there is a difference between sound
copyright (which is owned for 50 years by the company making
the recording) and composer royalties (currently payable
for a generous 70 years after the composers death).
If we take pop groups as an example, many of them from the
1950s onwards used to perform music they composed themselves
the prime example being The Beatles. Their royalties
will continue to be paid, whoever reissues their music on
CDs or whatever formats may be used in the future to provide
From the outset,
Alan Bunting made his objections to the proposals to extend
sound copyright protection very clear:
I am writing to the Gowers Review to express my views on
the specific subject of the record industrys desire
to extend the existing 50-year copyright period for sound
recordings. I am opposed to this proposal on the grounds
that it would not benefit the public and I would even argue
that, under certain conditions, there is a case for the
period to be reduced rather than extended.
The campaign the record industry has waged
via trade magazines such as Music Week has rarely been equalled
for the number of misleading and incorrect statements that
have been made. Throughout their campaign they have failed
to mention just what would be lost to a world wide record
buying public and a significant number of composers if their
wishes became reality.
The truth is that the record companies
concerns are centred on a very small part of the material
which is now approaching the present 50 year deadline. This
is almost all "pop" material, recorded by the
likes of The Beatles, The Rolling Stones, Cliff Richard,
Elvis Presley et al and one can understand their
wish to retain control of these recordings. The problem
is that this 50 year old material they are so anxious to
protect amounts to but a small fraction (probably less than
1%) of recordings of this vintage. If we consider all of
the recordings which would be embraced by the sought for
extension, then the figure is even smaller.
The record companies lobbying for a change
have little or no interest whatsoever in the other 99% plus
of their material that is more than 50 years old. Their
accountants tell them that it is not cost effective for
them to make it available to the substantial minority who
wish to buy and listen to it. We are talking about hundreds
of thousands of recordings spanning a wide range of differing
musical genres dance bands, singers, jazz, light
orchestral music, brass bands, military bands, film music,
folk music, spoken word, opera, musicals and classical music
covering a period from the 1920s to the 1950s. The desire
of people to hear this music again, which they usually last
heard on scratchy 78s, has resulted in a significant number
of British and European companies that specialise in restoring
and re-mastering onto CD large amounts of this material.
These CDs sell in sufficient quantities for such companies
to make a reasonable return from material in which the mainstream
record industry has lost all interest indeed they
often do not know that they made these recordings in the
These specialist companies operate quite
legally. They also pay the royalties due on the music on
these CDs. This generates a significant income for composers
and arrangers, many of whom would currently have no income
whatsoever if they had to rely on royalties from those seeking
an extension. I doubt if the record companies have mentioned
this in any of their submissions.
Just one of these specialist British labels,
Living Era, has a catalogue of over 500 CDs, most of which
sell all over the world in large quantities, the majority
containing material that the major record companies would
not even consider re-issuing.
If we take into account the catalogues
of the dozens of smaller re-issue labels in Britain and
Europe, then we are talking about several thousand CDs containing
"forgotten" music which generates revenue for
composers and music publishers and provides much pleasure
for those who purchase it. BPI Executive chairman Peter
Jamieson is on record as saying "I cant see that
it benefits anyone not to extend it" he appears
to be completely unaware of these royalties being paid to
composers and music publishers.
He also seems to think that the companies,
and the hundreds of people who make a perfectly honest living
restoring these old recordings, writing the booklets, doing
the art-work, and re-issuing them would "benefit"
from losing their livelihoods! And we should also consider
the pressing plants, the wholesalers and the retailers whose
turnover is enhanced by these re-issues.
More importantly, extension of the copyright
in these recordings would result in this music being lost
forever because, and I cant emphasise this enough,
the major record companies have no interest whatsoever in
making this material available should they win. Do we really
wish to deny thousands of people the pleasure of listening
to it simply because these companies want to protect the
recordings of a handful of "pop" artists? Doubtless
such deprivation would be considered another "benefit"
by the BPI.
The PPLs Director of government relations
Dominic McGonical said at a DTI seminar at the beginning
of March: "There would be thousands of musicians right
now who would benefit straight away from extension of copyright".
He should be challenged to substantiate this reckless statement.
Who are these "thousands of musicians"?
Maybe a handful of pop singers would benefit and a few star
names from the classical world, but the "musicians"
(i.e. backing groups, choruses, orchestral players etc.)
would have been paid a one-off fee for the recording and
receive neither royalties nor a percentage share of sales
revenue. Even many solo artists were forced into contracts
where the main beneficiary from sales was the record company
rather than the artist. I would also suggest that, for the
majority of pre-1950s recordings, the artists concerned
are either dead or untraceable and therefore the only ones
to gain from re-issues of this material would again be the
record companies. In any case, the claim completely ignores
the fact that these "thousands" would only benefit
if the record companies chose to re-issue their recordings
and, in most cases, this is unlikely to say the least.
Research in America shows that the extension
there has had little effect on the re-issue programmes of
the major record companies. The net effect therefore was
to considerably reduce the choice of recordings available
to the public. The same would apply in Europe - an extension
of the copyright would have little or no effect on the amount
of back catalogue issued by the major record companies so,
despite their bold claims, few artists would gain anything
and the public would undoubtedly be the losers.
It is worth considering this extract from
the American survey:
The argument was made that giving the
companies such lengthy ownership would encourage them to
preserve and reissue older recordings. With nearly 30 years
of experience, however, it is now clear that nothing of
the sort has happened. My own recent study of early African-American
recordings (surely a field of interest) reveals that only
one half of one percent of covered recordings made prior
to 1920 have been reissued by the copyright holders (Brooks,
Lost Sounds 10). Another study indicates that of the pre-1965
recordings of greatest interest to scholars and collectors,
those listed in major discographies, only 14 percent are
made available by rights holders, and for recordings made
prior to the 1940s the percentage dwindles to almost nothing
(Brooks, "Sound Recording"). Undeterred by such experience
(or ignorant of it) Congress in 1998 passed the now-notorious
"Sonny Bono Copyright Term Extension Act," lengthening all
the terms in the original act by 20 years. Now no covered
recordings will pass into the public domain until 2067.
I suggest that the following questions
be asked of each of the record company representatives:
1. How many recordings more than 50 years
old are there in your current catalogue?
2. What percentage of your more than 50
years old recordings does this represent?
3. What percentage of your recordings have
not been available for purchase for thirty years
I can assure you that the answers to these
questions will severely embarrass the record companies and
considerably weaken their case for an extension for
example the answer to question 2 will be less than 1% and
to question 3 it will be in excess of 99%. For some companies
the answer to question 1 will be "none".
They could then be asked a supplementary
question "If this extension is so essential,
then why do your answers reveal a total lack of interest
in re-issuing the vast majority of old recordings?"
Despite my objections, I have no desire
to prevent the record companies winning a copyright extension
if, in return, they would undertake to make all of their
recordings available to members of the public who wish to
purchase them. However, as most of the recordings outside
the "pop" field currently being re-issued by third
parties havent been available from the original copyright
owner for the past 50 years and, in many cases, 70 or 80
years, the chances of the original record companies ever
re-issuing them are slim.
Of course, in reality, there is little
need for an extension at all. There is nothing to stop the
major companies from re-releasing their own recordings that
are more than 50 years old. Provided that they have looked
after their archives they should have the master tapes or
pristine pressings of the discs in their vaults. This places
them at a considerable advantage compared with the independent
labels who usually have to rely on second hand copies of
the discs, which are usually less than perfect. If the majors
kept this material available, attractively packaged and
reasonably priced, there would be no reason for any independents
to want to get in on the act and duplicate these reissues.
However, except for the recordings of a
(very) few pop artists, the record companies dont
currently do this (and never have), so why should an extension
of copyright change anything, except to deprive the public
of music they want to hear and ageing composers of an income?
There has been some suggestion that, should
a change be made, it should be retrospective (i.e. apply
to recordings which were already out of copyright the day
the legislation is passed).
I find this not only unbelievable but totally
unacceptable. Surely this would be akin to allowing a company
to renew an expired patent on, say, an industrial process
with all the ramifications and problems that such an action
would cause? And what if the next step was to allow pharmaceutical
companies to retrospectively re-patent drugs which are currently
being manufactured cheaply and are saving lives all over
the world? Some will dismiss this as pure fancy, but my
view is that corporate greed knows no bounds and it wouldnt
surprise me one jot to see the extension of recording copyright
being quoted as a precedent for further, potentially much
more serious, claims.
Therefore, any extension should not be
retrospective. i.e. any recording that is 50 years or more
old on the day the legislation is passed remains out of
In addition to the above, I suggest that
if the record companies insist on pursuing this matter then,
in return for a copyright extension, they should be forced
to agree to the following:
Recordings that have been unavailable for purchase
for 30 years or more should come out of copyright as
they are obviously not considered to be of any significant
commercial value by the owning company. It is worth
noting that there are thousands of LPs, most of which
are less than 30 years old, that have never appeared
on CD because the record companies dont consider
the sales would justify it so why should anything
more than 30 years old be they be protected if it has
been ignored for so long? Such a change would generate
much extra income for the composers concerned.
The copyright should only remain valid if the recording
continues to be available for purchase by the public.
With so many recordings in existence there would have
to be some leeway here perhaps along the lines
of a condition that recordings should not be out of
the catalogue for more than 5 years at a time.
The record companies also claim that a
copyright extension would generate funds that they would
use to promote new artists. Frankly, if anyone believes
that, they probably also believe in flying pigs! The record
industrys track record in this area is abysmal and
the way that they have treated artists over the years disgraceful.
Perhaps everyone should read Louis Barfes excellent
book "Where Have All The Good Times Gone The
Rise And Fall Of The Record Industry" before making
a judgement on whether the record industry deserve a copyright
Finally, I would urge the Review to constantly
bear in mind that the motivation for requesting this extension
is based on the paranoid desire of the major record companies
to protect a few "pop" titles which represent
but a fraction of a percent of the recordings which any
change in copyright would affect.
The fact that an extension of the copyright
period would effectively prevent public access to well over
90% of the music ever recorded and thus deprive Europe of
its musical heritage and history does not concern them in
Much of David Ades report to the
Gowers Review made similar points (so it will not be repeated
here), although in a few areas his recommendations were
slightly different in emphasis and detail:
It has been claimed that the record
companies continue to make payments to artists for recordings
over 50 years old, and that this money would be lost
if the same music was reissued by independent labels. The
record companies should be required to provide written proof
to support this statement. From my knowledge many of them
used contracts around 50 years ago that involved single
payments to the musicians for the session, with minimal
royalties being paid to the main artist named on the label
for a stated period. I would go further to suggest that
it is unlikely that documentation still exists in the majority
of cases that would allow the record companies to calculate
such continuing payments, in the unlikely event that they
wished to do so.
One aspect which
seems to have escaped attention from the media is: why
should independent labels wish to reissue old material?
The simple answer is because it has been ignored for many
years by the major record companies. It is a well-known
fact that accountants are in control, and recordings are
deleted (often with indecent haste) as soon as sales slip
below a certain figure. This can happen in as little as
two years after the release of a disc, which means that
probably as many as 90% of recordings can remain unavailable
for up to 48 years until they fall into the public domain.
This means that the composers of the music are deprived
of royalties for their work. When reissued by independents,
the royalties start flowing again.
Another factor which
is escaping attention is the blindingly obvious fact that
there is nothing to stop the original record companies from
continuing to make their recordings available after 50 years
have elapsed. If they wish to be generous to their former
artists, they can continue making payments to them, over
and above the composer royalties. It would be interesting
to know how often this happens. To take The Beatles as an
example, if EMI continue to reissue their recordings attractively
packaged, and reasonably priced, why would an independent
label wish to duplicate such material? EMI possess the master
tapes and (provided that they have carefully looked after
them this is not always the case with every company)
they are in a privileged position to be able to produce
a superior product that could not be matched by an independent.
The truth is that
the independents are often better at exploiting the archives
than the record companies themselves. Having worked in both,
I can confirm that a small company will take greater pains
to use modern digital technology to produce sound quality
that is often superior. The big companies have large overheads,
and they cannot allow their sound engineers sufficient time
to devote to sound restoration. This is an area where a
growing number of small British companies excel, and their
expertise is recognised internationally.
Yet these independents
are, in the majority of cases, only dealing with recordings
for a small minority of collectors who have long been ignored
by the record companies. Make no mistake sound restoration
is an expensive business, and the small independents are
certainly not making a fortune out of old recordings. The
majors are simply not interested in releasing CDs unless
they sell in tens of thousands, yet the dedicated enthusiasts
who operate the small independent labels can survive with
sales in the hundreds. They are providing a valuable extra
dimension to the music scene, and preserving a culture for
our country that might otherwise be completely lost.
Another reason why
collectors find the independent labels appealing is the
research which goes into providing detailed information
in the booklets inside the CDs. Reading many of these it
is clear that the CD has been produced as a labour of love;
the corresponding booklets in many CDs from the major companies
are poor in comparison.
I would summarise
my main objections to an increase in the present 50 year
period for sound copyright as follows:
1. 50 years is a
reasonable (even generous) period of time in which record
companies can recoup the cost of their recordings.
2. A change to more
than 50 years would deprive many composers of the royalties
upon which they rely, and which are paid by independent
companies who reissue their material.
3. If the major record
companies continue to release their older recordings, there
is no attraction for small independent companies to duplicate
such CDs, and probably lose money as a result.
4. A number of older
singers have enjoyed a welcome revival of interest in their
music as a result of independent CDs. This might not have
happened if their fate had remained in the hands of the
5. The British independent
labels have gained an international reputation for the quality
of their work, which has generated valuable export sales
that could be lost if the period for sound copyright is
In conclusion I would
make two important points. If it is decided to increase
the period for sound copyright I urge you to insist that
it is not made retrospective, and that a reasonable period
of grace is allowed before any change is implemented. A
date of 1960 would not seem unreasonable, with all recordings
prior to that still being subject to the present 50-year
period of sound copyright.
As an alternative
to a blanket extension of sound copyright, a more equitable
solution may be to allow recordings to fall into the public
domain if they have not been made available by the original
record company for at least two years during a certain period
of time I would suggest 25 years would be fair. This
would allow independent labels to continue making available
in relatively small quantities recordings of a minority
interest that the record companies have long decided is
of no further interest to them.
Editor: I apologise to any readers who may feel that
too much room in the magazine has been taken up with this
matter. However I know that many of you share my strong
feelings on this subject, and we are talking about the distinct
possibility that many of the records we currently choose
to purchase may no longer be available to us in the future.
Too often poor and unsatisfactory legislation gets enacted
because people are apathetic and do not appreciate the full
implications. Hopefully this feature will have alerted many
of you to what is currently under threat.
This article first appeared in Journal
Into Melody June 2006.