July 27, 2004  ·  Lessig

Stefan Bechtold writes that the EU Commission (ok, a staff report) has decided that copyright terms for recordings in Europe should not be increased beyond the current term (50 years after publication), despite the growing pressure of recording labels to increase the term to “save” (as they put it) some of the most important Rock from entering the public domain. The story is getting press in Europe. (Independent, BBC).

This is an extremely important development in this battle. For once, a government-related entity has recognized the truth (or at least, not had its recognition crushed). I’ve already been talking to archives that are working on the idea of releasing all the recordings they can when they pass into the public domain on January 1, as a way of demonstrating the value of a wide range of work becoming available, unencumbered, for widespread use.

Here in the U.S., we’ll be able to celebrate the same in, um, 2019. Till then, for your listening pleasure, an oldie (first posted here last July): a 1937 radio program from the Columbia Workshop about creative works passing from the “copyright lane” into the “public domain“.

  • JH

    What I find disturbing about both these articles is that they refer to entering the public domain as a “loophole.” This is the way copyrights are designed to work – it isn’t “exploitation” as the Independent article puts it. Nor are the record companies’ arguments persuasive. They say they invested the money in the artists to begin with, and deserve to keep getting money in return. However, obviously they knew about this “loophole” to begin with – they should have planned for it. It would be like someone who receives the interest on a bond claiming that they should continue to receive this interest even though the bond has reached its maturity date.

    BTW Prof. Lessig, I saw your talk at Wisconsin this past year and thought it was excellent.

  • Alex

    I made a very similar comment in the letter I wrote to the independent today. It is entirely wrong for a mechanism that was designed to ensure that artists could afford to survive to now be used by record labels and the estates of dead artists to profit in perpetuity.

  • Jon Noring

    I’d like to comment on Prof. Lessig’s comment about U.S. sound recordings being “freed” in 2019. From my understanding of the legal status in the U.S. of pre-1972 sound recordings (which is outlined in an article I wrote last year) these recordings are not covered by Federal Copyright, but rather by a patchwork of State copyright and other laws. According to Section 301(c) of Title 17, these recordings will not fall under the “umbrella” of Title 17 until February 15, 2067, whereupon they will revert to the Public Domain as Title 17 currently stands. Since there were commercial records made as far back as 1889, that means these earliest recordings will technically be covered by copyright-like protection in the U.S. for effectively 178 years! And the recordings from the Golden Era of sound recording, the late 1920′s and 1930′s, will be covered for over 130 years. Of course, this is my understanding of U.S. copyright law as it applies to pre-1972 sound recordings, and it may not be correct in all details. Nevertheless, we must consider the unusual circumstances of sound recordings in the U.S. Maybe it is time for an amendment to 301(c) of Title 17 to revert the older, pre-WWII sound recordings to the Public Domain. Or maybe a court challenge to force these older recordings into the Public Domain.

  • http://www.rigoletto.com/blogger.html Mike

    Does anybody remember how European copyrights got to be 50 years? As I remember, they started off (early 1900s) at around 7 or 10 or so, but then the Wars intervened, and the courts decided that they should be extended for however long the Wars lasted. Then they gradually got bumped up again and again. They’re shooting for forever.

    Surely, Uncle Walt should keep control of his Mouse (and Milne of his Pooh), as long as they’re making use of it, and deriving income from it.

    But it doesn’t seem reasonable to me that somebody – and in some instances just a company that goes around buying rights – should be able to control a particular idea (OK, its “expression”). That right should stay with the family and the estate of the artist, as long as there is one, then revert to public domain.

    Tim Berners-Lee set a good example. He could have locked up the Web in a blanket of patents and copyrights, but he didn’t, and we’re all better off for it – including Sir Tim.

  • http://www.xs4all.nl/~phulshof Pieter Hulshoff

    Hmm, do I understand correctly there’s a big difference in the copyright law other than the term? From what I understand, the US separates copyright into rights for individuals (life + 70), and rights for companies (95). The EU separates copyrights (and neighbouring rights) into rights for artists (songwriters, authors, etc.) (life + 70), and rights for performers, recorders, etc. (50). This would imply that those Elvis songs will not be in the public domain in Europe, but that you no longer need to pay for neighbouring rights. You will still need permission from the copyright holder though.

  • Alex

    Mike:

    Can you justify your comment: “Surely, Uncle Walt should keep control of his Mouse (and Milne of his Pooh), as long as they�re making use of it, and deriving income from it.”?

    Walt and many others have benifited by works in the public domain and should expect that their works will do the same allowing another generation of artists to be inspired.

    I know comparing copyright to patents is a fraught activity but nobody argues that they should have an exclusive right on a patent in pepituity “so long as they are still using it” since this would make the industrial world much less competitive and reduce the sum of our knowledge. Why should artists get that protection when the creative world is simlarly enriched by works falling into the public domain?

  • http://mmeiser.snth.net/blog/ mmeiser

    �Surely, Uncle Walt should keep control of his Mouse (and Milne of his Pooh), as long as they�re making use of it, and deriving income from it.�

    That is a touchy subject. If I had invented and patented the wheel there would be no question that it should revert to the public domain. My ability to continue to utilize my wheel design is not diminished after it becomes public domain. However if Mickey Mouse enters the public domain it’s value unlike the wheel could be drasticly reduced to its previous owner. I’m thinking this is because it has a certain value as a trademark would.

    Like I said Mickey is a lightning rod because he is a much loved symbol and noone wants to see him pimping adwares or worse.

    But this is also the case of Snoopy which is clearly used as a spokesman or identifying trademark for Metlife. Granted they do lease a copyrighted work to be used as a trademark, which confuses the issue.

    However lets back up. If disney wants to trademark Mickey Mouse including his image and can maintain that trademark forever then I say go for it Disney. Disney can certainly prove it is a trademark and has been in continued use. However this should not stop old Mickey movies from falling into the public domain and it should not disallow every other aspect of the Mickey saga including Minnie (unless the can prove Minnie is a trademark) from becoming public domain.

    Anyway, it’s a very fine line in the Mickey and Snoopy cases. But as we can see with Elvis’ music there is no issue that it should become publicly available. It in no way shape or form bridges this trademark issue. He and his songs are not spokes men or elements of a trademark.

    It does pose many questions. The most facinating of which is could I form a company using my image as the trademark and identity and hence protect if not my work then atleast my image and likeness long after my death so long as that corporation maintains it’s existence and my image as their trademark?

    Why persue this line? Why is it interesting? Because Hollywood stars have been doing full body scans and voice records for many years. It is quite possible now and certainly will be possible in the future to reproduce them flawlessly in film. As intellectual property their likenesses would certainly eventually fall into public domain as they should. However what would be interesting would be the trademarking of a historical personas image and voice pattern to use as spokes person or identity.

    Well, I’m going to go read up on my Trademark laws, but likely one of you with your legal experience will expand on or shoot down my trademark vs. copyright debate.

    Cheers.