Comment by the Max Planck Institute on the Commission's Proposal for a Directive to Amend Directive 2006/116 EC of the European Parliament and Council Concerning the Term of Protection for Copyright and Related Rights

Abstract

The ostensible aim of the Commission's proposal to improve the economic situation of performing artists makes sense. Similarly, the descriptions of certain deficiencies in the music trade are true. However, the measures proposed by the Commission to remedy these problems - mainly a prolongation of the term of performance rights from 50 to 95 years - will, if at all, only bring marginal benefits to performing artists. In fact, the Commission also rightly recognizes that the problem of performing artists lies primarily in their lack of bargaining power as against the sound recording producers. However, it does not draw the obvious consequence that performers should be put in a better position by means of binding contractual provisions.

Nor can any objection be raised to the Commission's description of the challenges faced by the sound recording industry by new - illegal - ways of using performances on the Internet. However, no mention is made of a number of conceivable specific options. Instead, the Commission also limited its considerations on the producers' situation to the said prolongation of the period of protection, although there is no objective relationship whatsoever between the duration of the performance rights and the user behaviour objected to.

In truth, both groups of beneficiaries of performance rights would best be served if more effective use was made of the existing protection during the current 50 year term. On the part of the sound recording industry, an almost "perpetual" protection must not be allowed to distract from the necessity of using competition-based business models to recover the necessary investments and achieve a reasonable profit within realistic periods of time, taking into account the fact that the market presence of most productions will end much sooner than after five decades. Within that period of time, the performing artists can also be allowed to participate fairly in the profits by means of appropriate contractual provisions.

The proposed prolongation of the term of protection instead leaves all the shortcomings of the present system untouched. The proposed term of 95 years is based blindly on the US copyright system, albeit wrongly interpreted and incapable of easy comparison with European law. This also ignores the fact that the overwhelming part of the proposed term of protection can in any event no longer serve to improve the economic situation of living performing artists. If at all, only the phonogram producers will profit - or any heirs of performing artists, and it is not their protection that seems to be what the Commission intends, or at least no mention is made of them anywhere.

Even the Commission apparently does not believe that this initiative will achieve anything positive - even if only to the benefit of the sound recording industry; otherwise, it would be difficult to explain why its estimations are vague in such a manner that the figure of the estimated maximum is 20 times higher than the minimal estimation. Independent investigations suggest, however, that the prolongation of the protection period would have no perceptible benefits at all for those entitled to performance rights. At the same time, it cannot be disregarded that the prolongation of protection by a further 45 years would render access to musical productions difficult for a much longer period than at present if the copyright protection of the works used has already expired, which would often be the case particularly for classical music.

However, it is not only with respect to the commercial effects that the Commission's proposals are half-baked. Even superficially well meant approaches such as specifically the creation of a fund for needy performing artists, are on closer examination nothing but window-dressing, particularly since they are only intended as transitional solutions. The same applies to the use-it-or-lose-it clause, the applicability of which will depend on overcoming unrealistically high obstacles. Certainly, the general aim of increasing the protection of the performing artist is to be welcomed. However, what is necessary, and also possible, are measures other than those proposed by the Commission.

Keywords: copyright, related rights