Monthly Archives: May 2009

Seven Million Illegal Downloaders in the UK?

The issue of illegal downloading has been at the forefront of news headlines over the course of the past few months, with the publication of the Government’s “Digital Britain” report, calls from the Entertainment industry to disconnect file sharers from the Internet and the publication research by IDC claiming that anywhere between 27 and 41% of all software loaded onto UK computers is an illegal copy.

Research published this week by the Strategic Advisory Board for Intellectual Property (SABIP) suggests that around seven million UK residents are involved in illegal downloading, with 1.3 million using one of the most popular peer-to-peer file sharing sites on one day in particular. The most shocking finding, however, is that over one year, UK users had free access to software including music, movies and game files estimated at a value of £120 billion.

The report also said that the new generation of broadband internet connections could deliver 200 MP3 files in five minutes, a DVD in three and the complete works of Charles Dickens in less than 10. Intellectual Property Minister David Lammy said that the report highlighted the effect that illegal downloading has on the UK economy as a whole, as well as upon industries which depend upon copyright as their main source of income, such as Entertainment and Technology providers.

This research is telling us what many already know, specifically that illegal downloading is now have a very significant and measurable effect upon the UK economy, and in particular upon the Creative and Technology industries.

The Government has spent the past few years following the publication of the Gower Report trying to come up with a strategy on how to deal with this problem, including the suggestion that Internet Service Providers should take more responsibility, proposing a “three strikes” rule which would see internet users disconnected after three warnings and dealing with increasingly angry calls from the Entertainment Industry to get more involved and deal with the problem.

What the research shows is that the problem is very real beyond the hype and scare tactics but more importantly that it is growing and is more and more common across a number of age groups, rather than previous claims that it is most prevalent in the teen or student population. The message coming out of the report is that there is a lot of confusion in the minds of the public as to what material which is downloadable from the web is actually covered by copyright, with many believing that if software is free, then it isn’t protected.

Something will have to give sooner rather than later. The Entertainment Industry is pushing for public action to be taken against the younger end of the market, with the Government reluctant to do so. The message has to get out to the public on three fronts – that the overwhelming majority of files available for download over the web will be protected by copyright, that the owners of that copyright can take action against file-sharers who download with permission or without paying to do so, and that with so much money being lost it’s only a matter of time before we see high-profile criminal and civil cases being brought against individuals rather than the large-scale downloaders we’ve seen previously.

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“Getty” yourself a Copyright Lawyer

Websites are fast becoming the true “shop front” of many businesses and are often the first port of call for potential clients, meaning that it is now more important than ever that they make a good impression. Most start-up and existing businesses will set aside at least some of their budget to retain a third party marketing or web design agency to start establishing a presence on the web if for no other reason than to allow search engines to pick them up when users look for a certain service in a certain area.

 

Such as “removals” in Manchester or London, both of which are home to offices of JA Coles, a removals and transport contractor who is being sued by worldwide digital image providers Getty Images for copyright infringement over the use of a photograph on the JA Coles Website which was licensed to Getty for use by a Canadian Photographer. The claim has been issued in the High Court and seeks damages for, amongst other heads of claim, payment of the commercial royalty for use of the image, compensation for the costs spent in uncovering the unauthorised use and “loss of credibility”. 

This kind of case is nothing new, but it’s a very timely reminder of how even fairly anodyne imagery is protected by copyright, how that copyright can be used to generate income, and how far businesses will go to ensure that income continues to be generated.

Under English Law, Copyright in a photograph will always belong to the photographer in question unless that photographer has made other arrangements or is taking the shot as part of his duties as an employee. Being the owner of that copyright means that you can restrain other people from copying or using the image without your permission, subject to a number of very limited exceptions. This is how professional photographers continue to generate an income.

In this case, the photographer has licensed the photograph to Getty, who are a huge worldwide “image bank”. Getty will, at any time, have hundreds of thousands of images under license from their photographers, ranging from celebrities or “stock” pictures which will often appear in marketing materials, such as businessmen shaking hands, a cup of coffee on a boardroom table and so on. Getty will then use its massive resources to licence the images for use by third party customers and pay a royalty to the original photographer. This is now a very big and lucrative business for Getty as more and more businesses look to develop their brands through websites and often don’t have the time or skill to produce professional imagery of their own. Of course, if an image is simply cut and pasted from the web and used on another website, then Getty’s and the Photographer’s revenues stream is going to be abruptly cut off.

Getty has a very strict policy on the use of their imagery without a license or permission and employs a number of in-house lawyers to take action against any infringers. Usually, cases don’t go any further than a stern letter and a payment of the appropriate royalty (which is what the Court would award in damages), but here Getty seem determined to make an example of JA Coles as a deterrent to other businesses contemplating taking a similar short cut.

Use of unlicensed imagery may save you time in the short term, but in a period of economic decline where IP rights are being protected more and more jealously, the only way to protect yourself is to make sure that you have the rights to use all of the imagery on your website. There aren’t may defences open to you and the most widely used, innocent infringement, can only be run in a very limited set of circumstances in cases where you can demonstrate a genuine belief that there was no copyright in the image in question (usually because the period of protection has expired).

Additionally, if a Web Design Agency or other third party has put together your website, their terms and conditions may contain an indemnity, meaning that, if the site which they produce contains unlicensed imagery, then they can’t be sued for infringement.  You should always ask them to provide details of all of the images they use as well as invoices for licence fees paid.

We are likely to see more and more of these cases. The bottom line is, if you’re going to use an image, either make sure that it belongs to you or make sure that you have the right to use it.

Social Networking – An open Book?

A report released last week by the University of Cambridge revealed that many Social Networking sites such as Facebook, BeBo and MySpace maintain copies of photographs which are posted by their users even over 30 days after they are deleted, raising concerns over user privacy.

The research, which looked at 16 of the most popular websites hosting user photos, found that Social Networking Sites take a “lazy approach to user privacy, doing what’s simpler rather than what’s correct”.

The issue here is that many of the websites covered by this research will use third-party servers to store photos, probably because of the sheer size of the files in question. Many users may be worried that, when a request is made to take down a less than complimentary photo or any other content which puts them in a negative light, it may still remain on the website even after it’s been deleted.

There are clear legal issues here, the most important of which being copyright and privacy. A photograph is owned, for copyright purposes, by whoever took the photograph in the first place. The fact that Photographer owns the copyright means that they can control how it’s used and restrain anyone else from making copies of it. However, sites such as Facebook and Bebo will obviously need to bear in mind any complaints made by third parties who are in the Photographs. Privacy and “Image Rights” are becoming much more widely-used causes in the Courts, but unless the photographs in question are particularly invasive (i.e. similar to what would appear in tabloids), then it’s hard to see how a claim for damages based on privacy or image rights would stack up if considered by a Judge, mainly because image rights in particular are created via the interrelation of a lot of different legal principles and can be hard to rely upon in some cases unless you are a public figure whose image is licensed to third parties so that you can make money from it, as was the case when Eddie Irvine sued Talksport a few years ago.

The sites will usually fall back on their terms of use, which in Facebook’s case, have come under heavy criticism recently. In February,the site was forced into a U-Turn over controversial plans to change its terms of service to include wording which would allow them to retain some ownership over any content posted onto the site so that it could be used by advertisers or other third parties, which would include photographs. However, the fact is that the terms of use of many of the websites covered by the survey will contain provisions which grant the site a license to us whatever you upload and share it with at least other users. Anyone who would have a problem with this should consider not signing up or altering their privacy settings.

That said, if a request is made for a photo or other material to be deleted or taken down, then it’s up to the websites to act quickly. The 2002 Electronic Commerce Directive Regulations provide that Social Networking Websites (as “service providers”) will not normally be liable for damages as a result of any content which they host unless they fail, when notified by a third party, to remove any unlawful content (which would include defamatory remarks, copied music & movie files and invasive photographs) as quickly as possible. Facebook and the other social networking sites appear to be failing to do so and if this is the case, then it’s only a matter of time before one of them ends up having to defend a claim which, if given enough publicity, could seriously dent their own reputation amongst their users and see many deleting their accounts for fear of what may show up on the site without their knowledge.

Breaking News – eBay vs. L’Oreal: Because in London, Brands are worth it

Online Auction giant eBay has seen its fair share of disputes since its launch in 1995, facing claims of facilitating fraud, hosting auctions of terrorist material and forcing their members to use PayPal.

But the vast majority of claims it has faced have been brought by high-profile brands who claim that eBay profits from infringement of their Intellectual Property Rights (IPRs) through allowing counterfeit goods and illegal copies of DVDs and software to be sold by anyone at auction.

eBay responded by introducing the VeRO program, which allows rights holders to force eBay to remove auctions from the site and provide details of the users who set them up so that action can be taken against them. Even so, many famous brands believe that the program does not go far enough and have launched separate claims against the site in courts across the world.

The most significant cases in recent years involved Louis Vuitton obtaining an injunction from the Paris Courts prohibiting any further sale of their perfumes on the site, whether or not they were counterfeit and Tiffany & Co. suing for Trademark Infringement. The Tiffany case, however, went in eBay’s favour, with a US court ruling that it was up to brands to protect their own marks and that eBay could not be held liable for trademark infringement simply because it may have been occurring generally on the site.

Earlier this week, the latest dispute to hit the headlines saw L’Oreal fail to persuade the Courts to hold eBay responsible for the sale of counterfeit goods in France after a judge ruled that eBay had done all it could to clamp down on infringing activity.

IPRs are dealt with differently in each country around the world, even though we have international treaties such as the Berne Convention to guarantee minimum protection for rights across national borders. The reason for the difference in the previous US and French decisions stemmed from the fact that European Trademark law is more draconian than the American systems and does not contain a defence of “fair use”, which allows for the use of a registered Trademark to identify a third party product.

The French decision in the Louis Vuitton case was a major blow to eBay and may thought that this would be the start of a movement which would force the end of auctions for branded goods, but after a Belgian case went in their favour recently, the Judge in this case has sent out a clear signal that eBay will not always be held liable for the sale of counterfeit goods and cannot be forced to take pre-emptive action against users who may be selling counterfeits.

eBay spend a considerable amount on deterring counterfeit sales every year, and the Judge suggested that the best way forward is for eBay and brands to work together to solve the problem. Brand owners are understandably disappointed but the message to them at this point has to be that the price of brand value and reputation will continue to be eternal vigilance for the foreseeable future and for anyone who suspects that their goods are being counterfeited and sold via eBay to make use of the VeRO program and take whatever action you can against the Counterfeiters themselves.

If you’re willing to spend time and money developing a brand and registering a trademark (which is very commercially valuable as it gives you a monopoly on the use of the mark in question), you will need to be willing to spend money to enforce it.

eBay vs. L’Oreal – Because Brands are worth it

Online Auction giant eBay has seen its fair share of disputes since its launch in 1995, facing claims of facilitating fraud, hosting auctions of terrorist material and forcing their members to use PayPal, but the vast majority of claims it has faced have been brought by high-profile brands who claim that eBay profits from infringement of their Intellectual Property Rights (IPRs) through allowing counterfeit goods and illegal copies of DVDs and software to be sold by anyone at auction.

eBay responded by introducing the VeRO program, which allows rights holders to force eBay to remove auctions from the site and provide details of the users who set them up so that action can be taken against them. Even so, many famous brands believe that the program does not go far enough and have launched separate claims against the site in courts across the world.

The most significant cases in recent years involved Louis Vuitton obtaining an injunction from the Paris Courts prohibiting any further sale of their perfumes on the site, whether or not they were counterfeit and Tiffany & Co. suing for Trademark Infringement. The Tiffany case, however, went in eBay’s favour, with a US court ruling that it was up to brands to protect their own marks and that eBay could not be held liable for trademark infringement simply because it may have been occurring generally on the site.

Earlier this week, the latest dispute to hit the headlines saw L’Oreal fail to persuade the Courts to hold eBay responsible for the sale of counterfeit goods in France after a judge ruled that eBay had done all it could to clamp down on infringing activity.

IPRs are dealt with differently in each country around the world, even though we have international treaties such as the Berne Convention to guarantee minimum protection for rights across national borders. The reason for the difference in the previous US and French decisions stemmed from the fact that European Trademark law is more draconian than the American systems and does not contain a defence of “fair use”, which allows for the use of a registered Trademark to identify a third party product. 

The French decision in the Louis Vuitton case was a major blow to eBay and may thought that this would be the start of a movement which would force the end of auctions for branded goods, but after a Belgian case went in their favour recently, the Judge in this case has sent out a clear signal that eBay will not always be held liable for the sale of counterfeit goods and cannot be forced to take pre-emptive action against users who may be selling counterfeits.

eBay spend a considerable amount on deterring counterfeit sales every year, and the Judge suggested that the best way forward is for eBay and brands to work together to solve the problem. Brand owners are understandably disappointed but the message to them at this point has to be that the price of brand value and reputation will continue to be eternal vigilance for the foreseeable future and for anyone who suspects that their goods are being counterfeited and sold via eBay to make use of the VeRO program and take whatever action you can against the Counterfeiters themselves. If you’re willing to spend time and money developing a brand and registering a trademark (which is very commercially valuable as it gives you a monopoly on the use of the mark in question), you will need to be willing to spend money to enforce it.

Software Piracy – Research claims that 41% of all Software installed is illegal

Illegal downloading is a popular topic at the moment, especially after calls from the Entertainment industry earlier this week for the Government to force Internet Service Providers to disconnect users who copy and share music and movie files in the face of a massive hit to the sector’s profits.

However, the effects of the trade in illegal copies is being keenly felt by knowledge-based industries across the board, as demonstrated by new research published by IDC which claims that around 41 per cent of all software  installed on computers over the last year was an Illegal copy. According to the research, the global trade in software piracy has cost the industry around $53 Billion. In the UK, software piracy rose by around 1%, accounting for 27% of all software loaded onto British computers.

Marcel Warmerdam of IDC, warned that the global economic crisis was likely to lead to a further rise in the figures this year due to the expansion of high-speed broadband connections, which many use to download all kinds of software ranging from games to office programs.

The British Software Alliance has called for action ahead of the publication of Lord Carter’s Digital Britain report in June.

It’s easy to focus on the music and movie industry as the main victims of piracy, but this research just goes to show that it’s a widespread problem for any business whose value is generated largely as a result of their ability to generate and exploit their intellectual property. 

Software, movies and music are all protected by copyright, which is a right that comes into being as soon as the material in question is recorded in a permanent form, whether that means writing it down, recording it or filming it. Provided that it meets the eligibility requirements, businesses will not need to apply for registration of copyright. This means that, provided they can trace ownership back to themselves, prove that it is original, show when you came up with it and that it doesn’t reproduce a substantial part of any other copyright-protected material, the only investment a business will need to make to protect its copyright is time.

It’s the value of that copyright which is being eroded through illegal downloading. Like the Music Industry, software houses will probably want to focus on Internet Service Providers, who provide their users with their connections to the web and the means to download illegal software, as the source of the problem but this isn’t as straightforward as it may seem.

ISPs can’t ignore the fact that they allow their users to share files and need to take some responsibility for the problem. For a long time, they have sad that they are not in a position to police the activities of their users due to the sheer number of them that download illegal software. ISPs are only obliged to step in and take action where a copyright owner makes them aware of their content being posted on a website which they host, or where they bring individual users to an ISP’s attention.

This is the “mere conduit” defence from the 2002 Electronic Commerce Directive Regulations, which also says that ISPs can be sued for copyright infringement if they do not quickly remove infringing content after being notified that it is on a website which they host or downloaded by their users.

Even then, it isn’t a black and white issue. ISPs monitor traffic on their network for a number of reasons and while it’s easy to identify traffic which moves through file-sharing programs such as LimeWire and Pirate Bay, it’s much more difficult to show exactly what that traffic consists of and what content is being shared. File Sharers are also becoming much better at hiding their IP addresses, which are used to track them down.

Even if you have an IP address, a number of people could use that computer, meaning that you won’t always get the right man. Not only that, but current technology used to digitally fingerprint files is already falling behind the times and may not be admissible as evidence in any court case, especially in a criminal prosecution where the standard of proof is higher. The EU has also expressed concerns that a Court ruling should be obtained before any user is disconnected.

There’s also the other side of the problem – users who make physical copies of software and pass them on. How this will be policed more effectively is anyone’s guess, but there’s certainly an obligation upon Software owners to implement more sophisticated encryption software and other tactics to choke off the supply. The likely target of any initiative would probably be the business community and as such it’s important that businesses ensure that they only use licensed software. It may cost more, but it’s more likely to be easily maintained and not contain malware or viruses.

The message has to be to take this seriously – a woman was forced to pay £16,000 in costs and damages by the Patents County Court in a claim brought by  for file-sharing earlier this year in a case brought by games producer Topware Interactive earlier this year. As we move further towards a knowledge economy, that knowledge will be protected ever more fiercely.

UK Media Industry calls for Illegal Downloaders to be disconnected from the Web

As the recession continues to bite, the Media Industry is lobbying the Government to take a stand against internet piracy. Later today, representatives from Virgin Media, Channel 4, Sony, Universal and the Premier League will call for the Government to force ISPs (Internet Service Providers) to take more responsibility for file-sharing and disconnect persistent illegal downloaders.

In the past, the Media has focussed on educating the public on the effects of illegal downloading through initiatives such as the “Knock Off Nigel” campaign, with proposals being made earlier this year for a “three strikes and you’re out rule. Virgin Media even went as far as sending warning letters out to individual file sharers using their network to download songs by the likes of Amy Winehouse.

However, it’s been difficult to say the least for the Government, the Media and the ISPs to come to an agreement as to how to deal with the problem. The Government has held off from forcing ISPs to take action against file sharers, mainly to avoid the creation of an environment where “teenagers are arrested in their Bedrooms”  and have pledged to introduce other measures to crack down on the problem, which is estimated as making up half of all traffic over the Internet in the UK.

Today’s joint statement from nine bodies representing the Creative Industries is the first time that Lord Stephen Carter, currently producing the final version of the Government’s “Digital Britain” report is being asked to commit the Government to take action after the Culture Secretary Andy Burnham revealed plans for an international strategy to combat illegal downloading in February. Recommendations will include the establishment of an enforcement body to be overseen by Ofcom to warn and ultimately prosecute offenders.

It’s no surprise that the Creative Industries are pushing for the Government to tackle the illegal downloading problem, simply because it is losing them so much money. The legal position here is pretty simple – most Music, Movies, Games, TV programmes and any other material which can be copied electronically will be protected by Copyright. This gives the copyright owner, usually the songwriter, director or author but in this case the Record Label, Movie Studio or Game Developer who makes the content available, the ability to stop anyone else from copying the material and passing it on to third parties. Even in the 80’s, LPs bore the slogan “Home Taping Is Killing Music” and the problem has only been made worse by the advent of the Internet and other technology which makes copying much quicker and easier.

ISPs can’t ignore the fact that they allow their users to share files by connecting them to the web and need to take some responsibility for the problem. For a long time, they have sad that they are not in a position to police the activities of their users as so many of them download illegally as well as that they are only obliged to step in and take action where a copyright owner makes them aware of their content being posted on a website which they host, or where they bring individual users to an ISP’s attention. This is the “mere conduit” defence from the 2002 Electronic Commerce Directive Regulations, which also say that ISPs can be sued for copyright infringement if they do not quickly remove infringing content after being notified that it is on a website which they host or downloaded by their users.

Earlier this year, ISPs faced a deadline to come up with a deal with the Music and Film Industry on how they intended to deter illegal downloading by April 2009 or face new legislation. Signing up to a voluntary code of practice would have been sensible, however many ISPs depend on business from the younger generation, many of whom are among the worst offenders in illegal downloading. Will they still want to use an ISP that could cut them off if they’re not willing to buy music legally?

This isn’t a black and white issue. ISPs monitor traffic on their network for a number of reasons and while it’s easy to identify traffic which moves through file-sharing programs such as LimeWire and Pirate Bay, it’s much more difficult to show exactly what that traffic consists of and what content is being shared. File Sharers are also becoming much better at hiding their IP addresses, which Record Labels and Movie Studios use to track them down. Even if you have an IP address, a number of people could use that computer, meaning that you won’t always get the right man. Not only that, but current technology used to digitally fingerprint files is already falling behind the times and may not be admissible as evidence in any court case, especially in a criminal prosecution where the standard of proof is higher. The EU has also expressed concerns that a Court ruling should be obtained before any user is disconnected.

The irony here is that the Media will want to go after the demographic which the Government doesn’t want to target – the younger end of the population who thinks that they can get away with it. ISPs won’t want to disconnect their own users but they may now be forced to. Recently, the summer blockbuster “Wolverine” was made available online before its release date, which many think had had an impact on its box office takings and which the Media is using as an example of how illegal downloading cut put many jobs in the creative industry at risk and is forcing them to bring thousands of claims against individuals. However, ISPs are pointing the finger back at the Media, claiming that their business models are behind the times and that the problem would not exist if a larger amount of material was available for legal download. For example, you wouldn’t need to illegally download a Beatles track if you could buy it through iTunes.

Realistically, a Code of Practice for ISPs is the best way forward. The one thing that is certain is that the problem is not going away and needs to be dealt with, either by choice or by the creation of a new set of legislation.

Shock Jock plans to sue for Defamation over inclusion on “Least Wanted List”

Beleaguered Home Secretary Jacqui Smith is facing yet another attack this morning after including American “Shock Jock” Michael Savage in a list of 16 people banned from entering Britain on the grounds that they would express views which stir up hatred, serious criminal activity or violence in the UK. The publication and naming of the majority of the list (with some exclusions on the grounds that revealing their names would not be in the public interest) follows a review of the rules governing entry into the UK and the introduction of a new power to exclude entry where those on the list could not prove that they would not “stir up tension” in the United Kingdom.

Justifying her publication of the list, the Home Secretary told GMTV that: “Coming to this country is a privilege. If you can’t live by the rules that we live by, the standards and the values that we live by, we should exclude you from this country and, what’s more, now we will make public those people that we have excluded.”

Savage, an extremely popular and controversial radio host, was included on the “least wanted list” on the grounds that he is “considered to be engaging in unacceptable behaviour by seeking to provoke others to serious criminal acts and fostering hatred which might lead to inter-community violence”. Savage has told the American Press that he has been “defamed and endangered” by Jacqui Smith’s decision and now planned to sue the UK Government for Defamation. In an interview with the San Francisco Chronicle, Savage said:

“This lunatic . . . is linking me up with Nazi skinheads who are killing people in Russia….she’s putting me in a league with Hamas murderers who kill Jews on buses.  “I have never advocated violence. I’ve been on the air 15 years. My views may be inflammatory, but they’re not violent in any way.”. 

To be liable for defamation in the UK, a claimant must show that a statement was made about them which was repeated (or “published”) to a third party, and causing reasonable and respectable people to think less of them. It’s all a question of respect and damage to reputation – the test which the Court usually applies is to look at whether the Claimant has been “exposed to hatred, contempt or ridicule” or “shunned and avoided”. 

Savage is a “shock jock” in the truest sense of the phrase. He has said that he never plans to visit the UK, and it’s probably fair to say that this incident may raise his standing in the minds of his listeners or increase his profile, both within the US and internationally. However, he has already noted that UK libel laws are more draconian than in other countries, especially the US.

The Government has been working very hard to deter cases where celebrities or other public figures choose to sue in the UK rather than abroad as it may have a negative effect on the freedom of the press, as well as abusing the Court system.

 The problem here is that we currently have a line of cases dating back to a decision in 2005 which saw boxing mogul Don King being granted leave to sue for libel in the UK over supposedly defamatory comments made against him by a US website. Under US Law, King’s claim would have failed, but in the UK it remains perfectly acceptable to sue over harm to his reputation in this Country.

 Defamation law is meant to strike a balance between a right to protect an individual’s reputation and freedom of speech. The Government may choose to run a number of defences to Savage’s claim, first among which is “justification” on the basis that Savage’s description on the list and the comments made by Jacqui Smith were true. However, given as we have no real evidence of him causing problems in the UK or even causing real unrest in the US, this would be difficult to prove.

 They could also consider the defence of  fair comment on a matter of public interest, however for this to work the statement need to express an opinion rather than the mere fact that Savage is on the list. The Government would probably lean more towards the defence of Privilege lean towards as they could claim that even if the statement made about Savage was defamatory, he should be barred from suing the Government on the grounds that they are under a moral, legal and social duty to tell the public about the names on the list in the interests of national security or a similarly grey area of public policy.

It’ll be very interesting to see how this case pans out as it could set a very dangerous precedent if more “name and shame” tactics are used by the Government but I think it’s safe to say that Savage will be facing an uphill battle if he does follow through with his claim. For now, unless he really does plan to come to the UK or his reputation really is in tatters, he’s probably better served keeping his listeners happy rather than his Lawyers.

Keeping the Status Quo?

In the latest episode of what has been a long-running debate, this first wave of rock stars and the session musicians who played on their hits welcomed last week’s vote from the European Parliament voted to extend performance copyright from 50 to 70 years from the date of recording following a campaign led by, amongst others, Status Quo, Sir Paul McCartney and Sir Cliff Richard.

 The move has sparked its fair share of controversy after the Gowers Review on Intellectual Property, commissioned in 2006, looked at potential reform of the copyright system and recommended that the term of protection remain at 50 years. Original proposals by the EU suggested an extension of the term to 95 years, which led to disputes between the member states and the compromise of the 70-year figure.

It’s probably fair to say that when the Copyright Legislation was amended in the 1980s, many commentators may not have expected music from the 50s to still be making money for its creators well into the 21st century – mainly because most cultural commentators thought that Rock & Roll would only turn out to be a fad.  Not only that, but technology has advanced far faster than anyone could have predicted, making music available over a much wider range of platforms and on a track-by-track basis rather than only as albums or singles. Music has far greater longevity now than ever before, which artists believe should allow them to continue earning well into their old age.

It’s easy to come out on the side of the artists here, but we should bear in mind that the extension will only apply to copyright in the recording of a song. Apart from this, songwriters are also protected by the fact that the lyrics and music making up the song in question will also be separately protected. This will mean that acts who write their own work such as the Rolling Stones or Elton John will be able to earn royalties for a period of 70 years after their death. Given that Sir Cliff and some of the other acts pushing for the extension worked with outside producers and songwriters (including acclaimed songwriter Lionel Bart), then it’s not surprising that they’re keen to keep earning royalties from their recordings as long as possible in an environment where new audiences may be discovering their work for the first time.

Basically, artists who don’t write their own material will depend upon royalties for their work as their main source of income apart from touring. The point then, appears to be that if they really want to control their own destiny and make as much out of their catalogue as they can, artists should come up with their own material where possible and if not, buy out the copyright in the material which is written for them as soon as they can. In an environment where Musicians are struggling to make any income from their music if their new albums are leaked online, these proposals are meant to keep artists creating new music and widen consumer choice. Time will tell if this turns out to be the case.

It’ll be very interesting to see how this pans out if for no other reason than the Music Industry is now starting to seriously clamp down on copyright infringement generally and in the last major review of this area of law, it was felt that 50 years was long enough. In any event, the fact that the limit is staying at 50 years for the time being will mean that some recordings, such as Cliff Richard’s most iconic hits, are already losing their protection. Whether the artists or the industry in general is the real winner here remains to be seen.