Rory Cellan-Jones

Conflict over copyright

  • Rory Cellan-Jones
  • 26 Nov 08, 14:20 GMT

It seems an open-and-shut case, a no-brainer.

Thousands of ageing session musicians, who earn on average less than £15,000 per year, are being denied a living wage because of unfair copyright laws. Whereas composers and authors get to keep their rights for 70 years after they die - or rather, their heirs do - for performers, the cut-off point comes 50 years after the original performance.

tom_mcguinness.jpgThe effect is that musicians who played on some of the classic tracks of the early 1960s will be denied what is in effect their pension because the royalities will dry up just as they really need them. Take Tom McGuinness, who played guitar in Manfred Mann on that classic track Do Wah Diddy Diddy. The song was released in 1964 - so in 2014, Mr McGuinness will stop getting any payments.

musicians_youtube.jpgNow he's among a number of musicians who've sent a video message to the prime minister urging him to change his mind about an EU plan to extend copyright. In the video, Mr McGuinness says, "I've been a working musician for 44 years now and I've made records which have been hits and records which have been misses. I don't understand how ethically and morally you do not support the extension of copyright."

So, should Gordon Brown pay heed to the musicians' appeal and put his weight behind a European Commission directive that would extend performers' copyright to 95 years? Well, if he does he will be swimming against the digital tide - and against his own government's stated policy of making copyright less complicated.

In the internet age, content new and old is making its way online, where it is being shared, mashed up, recut and generally recycled. Just go to YouTube and search for Manfred Mann. You'll find Do Wah Diddy Diddy straight away, but I very much doubt that if you end up watching the old television show where the song is played, Tom McGuinness will get a penny in royalties. Now YouTube's owner Google is, as we've previously noted, collaborating with copyright owners who want to identify their material on the site, and sometimes to erase it. But, in the intellectual property wars, the file sharers are winning.

So there's an online revolution underway against any kind of copyright. But that revolution doesn't just involve the mllions who indulge in illegal file sharing. Even copyright owners are finding that the complex web of rights and royalties involved in any piece of content they own is making it quite tricky to put that material online.

All big media businesses - including the BBC of course - are desperate to distribute more of their programmes, their music and their films over the internet but they are finding that this involves extremely complex negotations with the artists who created that material. When it comes to exploiting archive material, the whole business is even more painful. They won't want that process made even tougher by an extension of copyright for performers.

So the idea that musicians like Tom McGuinness should continue to reap some modest reward for their creativity sounds appealing. But if Gordon Brown decides Do Wah Diddy Diddy is a cultural treasure that needs further protection, there will be a chorus of boos from those who believe copyright law is a brake on innovation.


  • Comment number 1.

    Tom McGuinness is in a lose lose situation, even if the prime minister listens to him and changes his mind about the EU proposal it is unlikely that he will see much in the way of money from this. Only the top artists will benefit from this, via the big record labels, it is even possible that he will see less money as collecting societies like the PRS fill the coffers of the dead for longer and the royalty pie from broadcasting and piped music is cut into thinner slices.

    The Open Rights Group has written about this:

  • Comment number 2.

    Er, sorry, it's not a 'no brainer'.

    Leaving aside the particular case of Tom McGuinness (who is actually worth a bob or three) there is surely a difference in principle between a composer (who created something original) and a session musician who just happened to be the one playing that day out of many who could have been chosen.

    I'm a computer programmer. By the same logic I should have rights to royalty payments on any work I do - yet (as with almost all professions other than musicians) I do the work and have no title or claim on the resulting program - a situation which I accept.

  • Comment number 3.

    So big media businesses are allowed to make money from the work of musicians, but the people who make and create it are not? Sure, we may need a simpler licensing system, but that doesn't mean that conglomerates should be allowed to build multi-million pound operations without rewarding those who created the music in the first place.

  • Comment number 4.

    I wish i was paid for work i did 20years ago. That said most of the big well known artists have made more than most of us yet when we retire we have either a gov. pension or private did they not take a private pension out? of course not too busy living the high life when young. copyright want simplifying that includes allowing people to use whatever music they wish on you tube, and royalty free for Internet radio.

  • Comment number 5.

    It shouldn't be a surprise to these people that their royalties are going to expire shortly. They've know this will be the case for 50 years! If they've failed to make adequate pension provision like the rest of us, then I'm afraid there is nobody to blame but themselves.

    The last thing the EU or UK needs to do is extend the length that copyrights are valid for. As you article mentions, copyrights and patents put the brakes on development and creative reuse of existing works.

  • Comment number 6.

    Rory, it's a no-brainer that the situation is out of order and unacceptable. I don't know of a single patent attorney (forming the inventor's work into the patent document), book editor (forming the author's work into a publishable format) or actor (performing the playwrite's work on stage) who is paid after their work is done. Of these, the patent attorney holds copyright in entirety for the words he or she wrote; the book editor added contributions to shape the text while the author was writing it and so might be considered co-owner of the copyright; the actor holds no rights in their performance after the show is done. So why are musicians afforded rights in their performances when actors aren't?

    It's grossly unfair that performing musicians get paid after their work is done. And to extend this unfair protection because a performer failed to protect their income when it was available to them only rewards this irresponsibility. It is sad when people are old and poor and can't support themselves financially. But it's less sad when they were once famous and now are not, having not held on to their riches.

  • Comment number 7.

    Many have already said it, but the continuing payment for work done in the past is quite offensive, and does not pass the simple test of comparison with the action of a house builder or an engineer. The protection should be in the creativity of the original design (read the words and music) but the performance of those words and music is as much a mechanical reproduction as a house being built. I am sure we would love to pay annual fees for the continued use of our house.

    The rolling out of the backroom boys over the last couple of days, so we can take pity on them because they have not made plans for their retirement, is an offensive tactic of the protectionist music industry who need to have a sharp insertion of real life.

  • Comment number 8.

    So the performers had 50 years to make money and they have not managed to build enough income?

    I am sorry, but I have no time for them.

    The fact that record labels have managed to introduce legislation that is unjust (I don't remember the people demanding from the government the obscene copyright terms we have for authors) should not mean that performers look for "equality" by requesting the introduction of copyright terms for them that are equally unreasonable.

    I wish any work I do today will generate some income for me in 50 years time!

    Performers should count their blessings and stop trying to rip off consumers and our cultural heritage.

  • Comment number 9.

    The person who "invented" a creative work, of whatever sort, should receive copyright protection for the duration of their life. Others should not, including descendants.

  • Comment number 10.

    The four major record companies will benefit the most from a copyright extension. They can charge a higher price for these recordings because they do not face any direct competition. Also it restricts the amounts of recordings in the market, therefore the majors keep their share of the market (approx. 85%) and they assume that you will buy one of their newer recordings.

    The record major company do not stop selling recording when they enter the public domain, e.g. the early Elvis Presley recordings are still available on Sony BMG and Frank Sinatra’s 1950s Capitol recordings are available from EMI. Although they have reduced their prices due to the competition, but they are still making royalty payments to the estates. EMI will continue to pay royalties to Cliff Richard for its sales of ‘Move It’ (which enters the public domain on 1st January 2009) in line with their contracts.

    It has been estimated by PWC (commissioned by the BPI) that a 45 year extension will increase the record industry income in the UK by between £8.4 and £163 million, this money can only come from one place, the consumers.

    The performers do not “lose” anything, they knew when they were recording that the protection was for 50 years. They should have saved for their retirement like everyone else in society.

    Performers do very well out of the current copyright law. They receive free copyright protection for 50 years based upon another person’s copyright (the singer songwriter is consider legally to be two separate legal entities). While inventors only receive 20 years of patent protection which costs thousands of pounds and is very time consuming.

    Most performers (especially on older recordings) only receive a few pounds royalty each year. The performers’ two main sources of royalty income are from sales of recording (CD and download) and from public performance. The later is controlled in the UK by the PPL, which charge broadcasters and locations that play pre recorded music a fixed amount based the size and turnover, this does not reduce if they play some public domain recordings. Assuming the PPL do not increase rates due to the extension, the revenue paid to new performers will be reduced because of the extra payments to the estates of dead performers.

    According to the last annual report of the PPL out of its 38,000 performer members (which included featured and session musicians) only 23,000 were eligible for the minimum payment of £5.00 during 2007.

    For performers (including session musicians) who made recordings over a number of years or even decades will experience a gradual reduction in income, due to the recordings’ copyright protection finishing in a number of different years. Any performer who royalties do completely stop due to 50 years term, must have done something else in the last 50 years.

    The majority of recordings released in the last 50 years are currently unavailable. The majors will not re-release them, because they consider them to be uneconomical. You just need to check the high prices that some deleted records and even CDs are making on ebay to show there is demand for these recordings.

    Under the existing law anyone can release the recording after 50 years, these include the original performers and estates. Therefore it is possible for the performers to earn more from the recording when they re-released than in the previous 50 years. Also small labels are releasing deleted public domain recordings that would otherwise would be forgotten and lost forever. The composers (or their estates) are still paid royalties on these releases.

    The current copyright law is a complete mess, one simple solution is for all copyright protection to be reduced to 50 years after creation or first public performance/ publication.

  • Comment number 11.

    Performance isn't invention and doesn't merit copyright protection.

    Similarly computer software should not be patentable, since programming lines of code invariably doesn't invent unique functionality.

  • Comment number 12.

    And the reason why these musicians did not see fit to pay in to a pension fund like the rest of us is what, exactly? That the world owes you a living is not, to say the least, a very tactful proposition.

    I think though that these musicians are being set up by the record companies to make this video. Anyone with any real overview of the situation realises that it's not about the artists - it's about the music industry that feeds off them. I feel sorry for Mr McGuinness: he's an old man being manipulated by cynical record execs.

  • Comment number 13.

    What about teachers? You get a bit of help, specifically created just for you. You use it for the next fifty years, Why doesn't the teacher get royalties?

  • Comment number 14.

    Working on this logic, the printers who printed all the Harry Potter books are also entitled to a cut of the profits. It's unworkable. Where does it end?

    The session musicians were paid a fair wage for the work that they undertook and had the option of turning that wage down had they felt it was unreasonable.

    I believe the only 'no brainer' at stake here is that people are claiming royalties for work they have no intellectual property rights for.

  • Comment number 15.

    If a record company can continue to profit from a recording 50 years later, why shouldn't the musicians who created the recording do so as well? Who would you rather see benefit from the sale of a recording you buy? The musicians, or the suits?

    As for the point that extending copyright protection is just too complicated and is 'a brake on innovation'- well, thats just a copout. C'mon you guys- figure it out. I realize its a more complicated business these days, but to not extend copyright protection just to make file sharing and digital product sales easier -- on the backs of the musicians who MADE the music in the first place -- is unconscionable.

  • Comment number 16.

    As a music teacher, I have taught many talented young people over the years who may just have what it takes to make it in the music industry. I guarantee that even if an ex-pupil of mine becomes fabulously wealthy and successful, I will not benefit financially one bit, regardless of how much my input contributed towards their success.

    I completely understand the aspect of unique 'interpretation' that a performer brings to a piece of music or a script, for instance. In my experience, the session musicians are sometimes genuinely composing/improvising their own musical line during the rehearsal and recording process, but the fact remains that the genesis of the creative idea with which they are working belongs to somebody else. If they want to be rewarded for their creative input then they need to negotiate a sensible payment for their work at the time.

    The idea that these musicians "will be denied what is in effect their pension because the royalities will dry up" is ridiculous and insulting to many other people who earn in the region of £15,000 a year (myself included) who have the foresight to pay into a separate pension plan.

    And finally, the fact that record companies are making a fortune must be in part due to the huge investment that they made to spot the talent, sign it, organise the recording, produce it and market it. Those musicians that can make it without all that support, perhaps using the internet as a medium, should go ahead and they will be able to keep all the money for thmeselves!

  • Comment number 17.

    "I decree today that life is simply taking and not giving; England is mine, and it owes me a living.

    But ask my why and I'll spit in your eye..."

    The Smiths - Still Ill. They've got plenty of royalty earning left on that recording, mind. (n.b. Do I owe them something now, having quoted Morrissey's lyric?)

  • Comment number 18.

    As has been mentioned the extension of copyright will ultimately only benefit the Record Companies.

    IMHO Copyright should be reduced to 20 years Max and expire on the death of the holder.

    "What?" I hear you cry well if you haven't made money on something in 20 years then the extra 50 years wont make much difference. If something is so valuable that it still makes money after 20 years then the decendents should be getting a nice sum without have to use the copyright , once more after the death it is the Industry that benefits most not the right holders

  • Comment number 19.

    Actors often get paid after their work is done. If the work is recorded and if it was a "points" contract they get paid every time that recording is played. This is only fair. No one buys a record or a film because it was made by MGM, or because Joe Bloggs did the lighting, They buy it for the star's performances. They and the author/composer are the only ones who deserve royalties. Don't you think it's appalling that eg. Yoko will get royalties for 70 years, but Ringo and George only 50? If you buy a Beatles album, shouldn't all of them get paid? The point about negotiating a sensible contract at the time would be valid if it was "free choice" but many of the contracts signed back in the 60s weren't. I think the rights should be extended to 70 years for all.

  • Comment number 20.

    This is a very disingenuous article.

    Firstly, longer copyright is almost entirely in the interests of the big record groups, and would do very little to help any session musician.

    Secondly, session musicians do a job of work for hire, and know it. They have very little creative input to a work. In what sense do they deserve a share of the creative credits? I do a broadly equivalent job as a writer-for-hire, and neither expect nor receive royalties. If I want royalties, I'll take the financial risks of writing my own original work...

    Finally, Tom McGuinness is loaded!

  • Comment number 21.

    I don't understand why copyright should be a pension system for artists. That video argues for fairness in society, yet every other member of the public has to save for their retirement.

    I'm not even quite sure how extending copyright helps all those musicians on less then £1500 a year if they don't see any benefit from the change for another 50 years.

    Wouldn't the best solution in both cases be for the Government to step in and ensure musicians got a fair wage?

  • Comment number 22.

    Oh dear, a lot of respondents seem to have misunderstood what I was trying to say here. While I start with what you might call the case for the defence of the musicians battling to extend copyright, I thought I had made it clear by the end that a)it isn't going to happen and b)that making copyright even more complicated was likely to stifle internet innovation.

    Sorry - I was perhaps being a little too subtle.

  • Comment number 23.

    I'd be more impressed by the sentiments expressed by the author if the BBC terms for copyright on public submissions (photos for 'Day In Pictures' etc) weren't a rights grab that doesn't respect the creators.

  • Comment number 24.

    Rory may wrong to assume it isn't going to happen. The major record companies and their associates (e.g. PPL, BFI and IFPI) are spending large amounts of money lobbying politicians in Westminster and Brussels. The opponents of the extension can not afford to spend these amounts and therefore the politicians are not listening to them.

    The ultimate decision on the duration will be made by the MEPs, but European Commission is recommending the term be increased to 95 years. The EC published its proposal and impact assessment in July 2008, but they either misquoted or misrepresented all of the independent reports (all stated that copyright term should not be extended) including the Independent Gowers Report commissioned by the UK's Treasury.

    The EC even commissioned an independent report from the University of Amsterdam in 2006. It cost the EC (i.e. your taxes) 170,000 EURO, because it did not fit Commissioner Charlie McCreevy stated aims of February 2008 to increase the copyright term, there is no mention of this report in the proposal or impact assessment.

  • Comment number 25.

    Copyright certainly shouldn't automatically expire on the death of the creator. Given that a work may well take months if not years to come to fruition, and that the creator may well have dependants - children, significant others - it is utterly unreasonable to deny them the profits if the creator of the work died shortly after its creation. A fixed term is the only fair way.

    As to whether session musicians should recieve royalties - that is a matter for their contract. But they knew that their royalties would come to an end one day, and they have already had their pension from the music for the past 50 years. If they have a complaint about their renumeration, they should take it up with the music industry; but there's a lot of people needing to get fed by that pie.

    It should also be recognised that the copyright stifles new creative influences. Why shouldn't today's creators, building on the past, like we always have, be prevented from making money from their own creativity?

  • Comment number 26.

    We should be careful not to confuse the issues of authors' copyright and performers' copyright.

    There seems to be an assumption that the term being kept short will suddenly make swathes of music available free to the public. It won't. There remains other copyright in term, in place.

    What will happen is that 3rd parties will consider it financially viable to release some of this music i.e. they'll sell it to you.

    So the most likely impact not extending the term will be more bargain-bucket quadruple box sets in motorway services...

    On another important point: when does a performer become more than performer? If a bassist develops a bass-line that becomes a key characteristic of the song (e.g. Stand By Me) doesn't that become more than simply' having played'? A ruling in the Procol Harum 'Whiter Shade of Pale' case suggested that simply providing the accompaniment could provide basis for sing writing credit. So the distinction between composer and performer isn't always black and white (no pun intended).

  • Comment number 27.

    Mark_Mulligan (comment 26) made a number erroneous comments and assumptions.

    The distinction in law between a composer and a performer is “black and white”. If you receive a writer credit for song or piece of music, you are the composer and therefore will be able receive composer royalty. Whether someone is listed as the composer, depends on the contract and is not the responsibility of the copyright law and its duration.

    It is known within the music industry that certain performers demand a co-writer’s credit to any song they record, even though they contribute nothing to the composition, otherwise they will not record it. While some groups give the writing credit to the whole group, even though some members do not contribute to the writing of the songs.

    The Procol Harum 'Whiter Shade of Pale' case is still active having been granted permission to appeal to the House of Lords. The Court of Appeal overturned a previous judgement to award the organist Matthew Fisher (who is now a computer programmer) a 40% share of royalty backdated to May 2005. This was overturned due to an "excessive delay" in the claim being made, i.e. nearly 40 years after the recording of the song.

    Large swathes of music will be available free of all copyright, especially in classical, blues and world music genres because the composers died more than 70 years ago or they are recordings of traditional songs.

    The principle reason why people are against the extension is about availability. Most recordings released in the last 50 years are now out of print and earning no royalty payments for the performers. You can spend in excess of £100 to buy a deleted second hand record at record fairs and on ebay, if you are lucky enough to find a copy. None of this money goes to the composers or performers. The major record companies who own many of these original recordings, will not release them because they consider them to be uneconomic.

    The current 50 years rule enables the performers to release their own recordings that have been deleted for many years. Other small labels (often run by one person) release music that they enjoy and want to share with other people. Many of these re-releases only sell a few hundred copies, but they still pay the composer royalty to the MCPS-PRS alliance, which is 6.5% of the retail price (ex vat) prior to manufacture.

    The popular recordings (e.g. Cliff Richard) that enters the public domain will appear in numerous “bargain-bucket” boxes. The original copyright holders do have a competitive advantage over the other labels. They have the master tapes (if they have not lost them) to make better remastered recordings, photographs and other unreleased material. Depending on the artist’s contract with the record company, the artist will continue to receive royalty payments on the original copyright holder's sales, even when the recording enters the public domain.

  • Comment number 28.

    Do session musicians not enter into the business accepting that they will only receive royalties for 50 years? This isn't to say the situation is fair upon people like Tom McGuinness, but afterall, being a musician on a piece of music is a lot different to being the composer (as stated previously).

  • Comment number 29.

    Rory: Could you explain your post at 2.52pm on 27 November 2008...

    Since, I am getting confused...There are conflicts over copyrighted materials all of
    the time..


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