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Society, Politics & Law

Not so much 'Thank-you for the Music' as 'Money, Money, Money'

Updated Wednesday, 24th December 2008

Can consumers be expected to obey copyright law if they work in favour of the individual copyright holder? Mike Richards looks at the complexities of the current laws.

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Apple used to promote their products with the slogan ‘It just works’; except for thousands of owners of Apple’s latest laptops, it doesn’t work at all. Excited buyers of Apple’s latest MacBook and MacBook Pro computers have been complaining that if they plug their laptops into existing monitors – including Apple’s own CinemaDisplay range, they see an error when trying to play high definition movies.

Digital photocopy booth, Institute Of Technology Bandung Creative commons image Icon Ikhlasul Amal under CC-BY-NC licence under Creative-Commons license
Digital Photocopy shop at the Bandung Institute of Technology

Mac users were bitten by High Definition Content Protection (HDCP); an industry-standard Digital Rights Management (DRM) system designed to prevent the piracy of high definition movies. Under HDCP, the player of a movie scrambles the content before transmitting it down the cable to the television set or monitor. At the other end, the display device unscrambles the signal so that it can be displayed correctly. HDCP requires that both the player and the display contain specialised circuitry perform the complex encryption / decryption process, and this is where the new Macs have had problems. Although the latest Macs all contain HDCP chips, none of Apple’s monitors (with one exception introduced last month) have them.

Apple’s solution is for users to replace almost-new monitors with those coming with HDCP. At the same time, Apple is publicising just how green the company is with low-emission displays, less packaging and reduced pollution. Clearly something doesn’t add up. HDCP is becoming increasingly common on computers; so many more people are going to be affected by this problem in the near future. Consumers are going to have to either accept restrictions on their use of their computers or pay out for even more hardware.

HDCP only exists because of something I’ve mentioned a couple of times before; copyright. To briefly recap; copyright is an 18th Century legal concept that protects an inventor or artist by giving them the exclusive right to reproduce their work for a limited period of time. At the end of the copyright period, the work passes into the public domain where it can be reproduced by anyone. Copyright was designed to balance the interests of creators and consumers alike; the creator benefits by being the only person authorised to sell their creation, society benefits because works in the public domain can be used by anyone no matter how rich or poor.

The 1710 UK law that created the concept of copyright dictated that works would be protected for 14 years from the date of publication; after which the author could apply for a copyright extension for a further 14 years. However, in no circumstances could the copyright term extend beyond 28 years. Since then, there has been an almost inexorable increase in the length of copyright. Copyright terms in the United Kingdom are almost uniquely complicated. Rather than adopt a single period of copyright, the Copyright, Designs and Patents Act (1988) lays down a series of copyright terms for different media, depending on the type of media, the date of publication and the country of origin. Broadly, they are as follows:

  • for printed materials, the term is 25 years from the date of publication;
  • broadcast material (such as television or radio programmes) created in the UK are protected for 50 years from the date of first broadcast;
  • audio materials are copyright for 50 years from the time they were first recorded;
  • copyright for the composition of dramatic works such as movies, novels, music, literature, art or plays lasts for 70 years after the death of the author or director. If more than one person was responsible, the 70 year period extends from the time of the death of the last creator.

However, copyright terms outside the UK may differ; some works that are still under copyright in the UK are no longer copyright in the United States. This produces some interesting legal questions; Project Gutenberg is an endeavour to release out-of-copyright books in electronic formats. Based in the United States it includes many titles that are still copyright in the UK – but which can be downloaded for free by British users!

Conversely, one area where the United States has much longer copyright terms is in the field of sound and vision – reflecting American predominance of music, television and video. The most recent change in American copyright was the Copyright Term Extension Act (CTEA) of 1998 which gave corporations the ability to protect their works for 120 years after the date they were created or 95 years after publication, whichever endpoint is earlier. The law is known to its opponents as The Mickey Mouse Protection Act because it is the second time American law has changed just as the first cartoons featuring Disney’s most famous character were about to become public property.

Mickey Mouse was made public in 1928 (although the cartoonist Hugh Harman drew some sketches as far back as 1925) and originally protected by a 56 year copyright period. In 1976, a few years before the term on these early animations expired, a new copyright act was introduced, increasing American corporate copyright to 75 years – effectively pushing Mickey’s protection into the 21st Century. Then, just as Mickey’s extended term was about to expire, the CTEA was passed ensuring the original Mickey Mouse cartoons would not enter the public domain before 2020 at the very earliest.

Mickey Mouse is almost unique in copyright history in that the character is still a significant revenue earner for Disney. The vast majority of copyrighted works make almost all of their income in the first few years after publication. However, we should not be misled into thinking that it is only copyright that protects Mickey Mouse; Disney have registered their mascot as a trademark, a legal concept which lasts forever provided it is used. Even if the early Mickey Mouse cartoons were to enter the public domain, the character itself is protected – no one apart from Disney would be able to create new Mickey Mouse cartoons.

The same applies to music; much of the pressure for copyright extension in the UK has come from artists such as Cliff Richard and Sir Paul McCartney whose biggest hits were in the 1950s and 1960s. The copyright that is about to expire on these artists is the recording copyright; not the copyright they hold as the creator of a particular piece of music. Sir Paul McCartney will hold the rights to his composition up to and beyond his death and he and his estate will continue to benefit from 'Yellow Submarine' for decades to come. It’s very hard to see any benefits for consumers in the extension of copyright; but it is clear that large publishing companies can make considerable amounts of money by protecting relatively ancient works; if only to stifle competition.

Sadly there is now pressure inside the UK to follow the American copyright extension and increase the copyright term on sound recordings. This is something of a reversal for the British government. Between 2005 and 2006, the then Chancellor of the Exchequer, Gordon Brown, commissioned Sir Andrew Gowers to review the state of copyright in the United Kingdom. Somewhat against expectations, the so-called Gowers Report proved to be extremely radical. As well as proposing that British consumers should have a legal right to make recordings of purchased music (such as ripping an MP3 from a CD).

Firstly, it reported that the lower copyright term in the UK compared to that in the US did not appear to disadvantage British artists. Almost without exception, the vast majority of a title’s income was made in the first years after publication; revenues quickly tailed off into insignificance, and in time, might actually be worth less than a company spent protecting its rights. The Gowers Report estimated that the average CD makes two-thirds of its income in the first six years of its life – well within the existing term;

Secondly, the Gower’s report argued that copyright should not be altered retrospectively – that is, if copyright were to be extended, the new term should only apply to works created after the date the new law took effect.

The day after the Gowers Report was published, the music industry protested vigorously in a Financial Times advertisement signed by 4,000 performers – or at least apparently signed by 4,000 performers; several of the signatories, including Lonnie Donegan and Freddie Garrity had inconveniently died long before the Gowers report was commissioned, let alone published.

Sadly, it appears the government is back-peddling on the enlightened view of the Gowers Report and favours a future much more beneficial to the music and video industry. In part this is because of pressure from the European Union to harmonise copyright terms across the Union and in line with the American term of 95 years. The EU proposals are being opposed by some consumer groups and online advocacy groups such as the Electronic Frontier Foundation and the Open Rights Group who are arguing that any further extension of copyright will affect consumers' rights and all of our rights to freedom of expression. A pan-European petition and lobbying process is targetting Members of the European Parliament in the hope of persuading them to block any increase in EU copyright terms. But even if that battle is won, it looks almost certain that the British government will try to increase copyright in this country. In a recent speech, Culture Secretary Andy Burnham told an audience of music professionals:

'There is a moral case for performers benefiting from their work throughout their entire lifetime.

'That is why I have been working with John Denham, my opposite number in the Department for Innovation, Universities and Skills, to consider the arguments for an extension of copyright term for performers from the current 50 years.  An extension to match more closely a performer’s expected lifetime, perhaps something like 70 years, for example, given that most people make their best work in their 20s and 30s.'

Andrew Gowers replied in an acid column in the Financial Times: 'As political speeches go, this is pretty silly. A moral case? You might just as well say sportspeople have a moral case to a pension at 30.'

It seems clear that the government has already decided that British law must be made to accommodate the views of the music industry. Certainly people in the business were delighted by Burnham’s speech. The head of UK Music, Feargal Sharkey said, ‘At this critical time of change, the creative industries have never been more vital to this nation's future prosperity. Today's announcement regarding term extension is a clear sign that Government, like everyone in our industry, is committed to ensuring that UK music retains its status as the very best in the world.’

The head of the British Phonographic Institute, Geoff Taylor said: 'Copyright is the lifeblood of our creative economy and we are delighted that the government is recognising this by supporting an extension of copyright term for British musicians and labels. Copyright stimulates investment in musical talent and encourages innovation. Thousands of recording artists, hundreds of music companies and all British music fans will benefit from fairer copyright term'.

The use of the word ‘fairer’ is very interesting. There is no way that extending copyright is fair to the customer. When pressed about copyright extension, one music industry executive said that any increase in length of protection would be matched by the companies opening up their archives and reissuing old material. It sounds good, until you realize that if copyright was left unchanged the companies would be forced to release it into the public domain where it would be free for everyone!

Mr. Taylor seems to have forgotten that copyright is a balance between the rights of the individual and wider society. Consumers can reasonably be expected to obey copyright law provided they see it as fair; but when users are faced with high prices, limited distribution, platform lock-in and crippling DRM software, who can honestly be surprised when they turn to piracy?

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