Are performers a special case?

While almost every serious commentator in the field of contemporary copyright law takes the view that no case has been established for the extension of copyright term in respect of sound recordings, the case for the extension of the protection term enjoyed by performers themselves has at least one doughty advocate.

Right: these worthy performers can be found among the cyber-cats greeting cards, here.

IPKat reader and copyright specialist Professor Amanda J Harcourt writes:

"While Andrew Gowers' article (Copyright Extension is Out of Tune with Reality) makes a number of useful and pithy points, it does not fairly, in my view, state the case for the performer.

While the record companies in the 1990s indubitably "missed the boat" when attempting to debate and adjust their commercial practices to accommodate the developments of the internet - and now are suffering the consequences - there are moral arguments surrounding this new development. The songwriter and performer occupy the only moral high ground in the economic environment that is the music industry. This economic model of copyright has been taken to extreme by record companies. Guy Hands's early pronouncements about executive and administrative waste soon after his purchase of EMI were on point, but an understanding of the way artists are contracted by record companies demonstrates that those at the bottom of the royalty food chain - in this case the artist - have reasons for moral outrage.

Recording artists are " given" an advance to make an album. This advance has to be repaid, and repayment is made through the royalty percentage (between, say, 15% and 25%) the record company agrees to pay the artist. Artists who complete one album, the copyright of which the record company owns, and are on course for their record company to call for a second (or third) album (which the record company will
also own) are provided with a second (or third) advance. As before, this advance or loan has to then be recouped from income generated by sales of the artist's recordings. Money in the form of royalties is payable to the artist after they have recouped their advance - but it is payable in clearly defined accounting periods. If an artist has been lucky enough to recoup their first advance, they would be entitled to royalites which the record company and its subsidiaries have already received, and to be paid at the next accounting date - this is known as "pipeline income". But, if an artist is asked to deliver the next album, and the next advance is paid, the artist's entitlement to royalties is subject to the recoupment of the second advance. Thus, as a matter of accounting for an individual artist, the artist will have been loaned their own pipeline income, and will then have to recoup (or repay) this, their own, money before they once again approach a position where they may, possibly, receive actual royalites in the form of cheques. This is, to be generous, an imaginative economic model.

And, hairdressing salons and other small businesses will not be required to pay "a hidden extra tax" in the form of higher music licence fees. The fees for music use are set by the collecting societies, in the case of the sound recording copyright Phonographic Performance Limited. PPL licenses users and pays the fees across to the record companies whose copyright recordings have been played and to the performers whose performances were on those sound recordings. The societies' activities are regulated by the Copyright Tribunal and unreasonable increases in licence fees requested would certainly be challenged in that forum.

Performers fought long and hard to persuade the UK Government to grant them a statutory right to income from the broadcast and public performance of their performances on sound recordings. It was the intervention of the EU (EC Directive 92/100) that eventually meant the performers shared in this income - income that the record companies alone had been receiving since the 1970s (and had only minimally shared with performers on an ex gratia basis). There was no accompanying great hike in PPL licence fees to accommodate these new rightowners (the performers). The PPL distribution practices were simply altered.

The Directive that improved the lives of performers by giving them so-called secondary income that was not subject to the record companies' recoupment practices arose from the Rome Convention. This was an international convention that began life at the International Labour Organisation before the Second World War. The man that drafted much of the Convention, the late Ted Thompson, advised me that in its original draft, the Convention was to have given this right to broadcast and public performance income to the performers alone. Technological developments during the War prompted broadcasters and record companies to "get in on the act" in revised drafts after the War.

Performers have waited a long, long time to be treated more equitably and we should be pleased for the older and the lessser known, but equally deserving, artists, to whom this extension of term may make a useful financial difference. It is interesting that this concession has arrived at a time when, arguably for some, record companies need performers more than performers need record companies".

The IPKat is curious to know what his readers think. Please let him have your comments below.