The quick catch-up: Instead of 50 years, this latest legislation extends it to 70, which saves a trove of valuable 60s mastersfrom entering the public domain. Predictably, big labels and richer-than-God artists were lobbying for this one, with rhetoric and sweeteners tossed towards the struggling musician. But the broader benefit for those artists—and society in general—remains low.
In fact, heading into the vote, 8 European countries were seriously questioning the extension resolution. The nays weren't enough to curb passage in the EU Council in Brussels. “Sweden believes there to be good reasons for measures aimed at improving the situation for those professional musicians and other artists who often operate under economically difficult conditions," the country declared. “Extending the term of protection will however not primarily be of benefit to this group."
And, Belgium itself was among the dissenters. The others casting doubts included the Czech Republic, the Netherlands, Luxembourg, Romania, Slovakia, Slovenia, and Sweden, with Estonia and Austria abstaining.
That follows the initially outspoken opinion of industry attorney Steve Gordon, who warned of the lopsided outcome immediately following passage in Brussels. Gordon is sticking by that opinion, though dissenters pointed to a number of artist-friendly aspects in the resolution. “This is still a great thing for struggling majors which control the overwhelming bulk of valuable catalog, and to superstar artists who either negotiated for the re-purchase of their masters or who bargained for higher royalties rates. All that is true," Gordon told Digital Music News this morning. “However, it should be pointed out that the EU made efforts to provide some relief to less well-known artists who have small royalty rates or receive no money at all because their accounts are unrecouped, and session players who received a one-time payment."
What are those concessions? According to Gordon, the EU will require each member to make the following changes to help less successful performers:
- During the 20 year extension term, if a label is not distributing an artist's records, the artist may serve notice of termination and if within a year the label is still not offering the record for sale, the artist may start distributing the record and the rights of the label will expire;
- If the label is still distributing records, they must pay the artist's royalty without recouping unpaid advances or contractually defined deductions, and
- A fund of 20 percent must be reserved for session players.
But Gordon is mostly unconvinced that these changes will have long-lasting, impactful changes for smaller artists. One reason is that in the digital era, almost every artist has material actively available in the marketplace, and it can be very difficult to prove that a release is not being distributed. And, on the unrecouped 'clean slate,' Gordon noted that most artists are dealing with a small royalty rate to begin with, even if they are suddenly thrust above water.
And, on the fund, there are some problems. “The fund is an idealistic idea and may provide some much needed revenue to session players (side musicians and background vocalists). However, the featured artists would not be included," Gordon noted. “Also it remains to be seen how diligently the search of missing or diseased session players will be conducted. If the EU really wanted to help artists who made bad deals in their youth, they would have made termination rights automatic or at least have assigned 50 percent of income in the extended term to the artists and session players. That's the formula that US Congress devised as a fair reward for income from webcasting.
“The concept was if the labels were rewarded income from digital radio, unlike standard radio from which they receive nothing, they would have to share the money equally with the artists. Unfortunately under the EU's directive, many artists and fine musicians will still have to await their award in the next life."
But the chorus of questioners goes far beyond national policymakers and copyright attorneys: it also includes some fairly massive artists, many of whom hate their legacy deals. “This is extremely good news for record companies and collection agencies, but bad news for artists," singer Sandie Shaw of the Featured Artists Coalition (FAC) recently told the New York Times. Shaw, along with Nick Mason of Pink Floyd and Ed O'Brien of Radiohead, are leaders of the British-based artist advocacy group. “It means they have 20 more years in servitude to contracts that are no longer appropriate to a digital age."
