In conversation with... Dominic McGonigal and Joscelyn Upendran

In mid-September, the European Council announced that copyright in sound recordings and performances was to be extended from its current duration of 50 years to 70. Known as Term Extension, this directive has been met with a wide and diverse range of reactions. Implementing Term Extension into national law has to be undertaken within two years.

We asked two experts on copyright and content issues for their views. Dominic's employer PPL licences the use of recorded music on behalf of 45,000 performers and over 5,000 labels; Joscelyn is an advocate of a freer, open culture for content creators and publishers.

What do you feel is the effect of term extension from the point of the musician / producer?

DM: The main effect is recognition that your work is still yours.

Copyright is a property right. If I write something, it's mine. Under the previous legislation, those basic rights were lost after fifty years so others could profit from them, but not the people who actually made the recordings. The new legislation gives rights that are closer to those enjoyed in the USA.

JU: The announcement greeted with mixed and often contrasting reaction. It was described as a "brilliant moment" by General Secretary of The Musicians Union and as "a cultural disaster" by Jim Killock of the Open Rights Group.

The UK government backed the extension, which ought to surprise. The UK government commissioned the Hargreaves Review on IP & Growth, which reported in May 2011, and which appeared to be arguing against copyright term extension referring to economic evidence. The Gower's Review, another government commissioned review in 2006, had been more specific in its argument against term extensions. Lobbying on this issue from the music industry has been indisputably vocal, and the Directive was passed by 17 votes to 8.

I am able to appreciate the arguments of the rights holders of the works of certain 'superstar' artists (such as the Beatles and Rolling Stones) not wanting to lose revenue from lucrative catalogues when their copyright expires and the works fall into the public domain. Importantly, however, the beneficiary artists and rights holders are very few in number. It's been said that if the term extension Directive had not been voted through, there was a risk of hits from the Sixties being "lost to the public domain". The counter argument is that now the Directive is to be implemented, the public domain has been deprived of the hits as well as the "non-hits" that may have been re-discovered and released.

What do you feel is the effect of term extension from the point of the music industry (record labels and supporting functions)?

JU: The music industry comprises of a myriad of players in a labyrinthine landscape which includes the performer, producer, the record label, and collection societies. This complex network is further complicated by copyright law. Looking at this complex picture very simplistically, I personally would like to see the artist enjoy more freedom over their creative work. To be able to exercise more flexibility over it would allow them to make better use of the online opportunities for self-promotion.

If artists assign their copyright to record labels or collection societies as is usual in the UK and generally in Europe, they are not able to share their own works for free by licensing it under (say) a non-commercial Creative Commons licence. The way the music industry is structured doesn't make it easy for the artists to explore such opportunities.

DM: The supporting functions are just that - supporting. PPL, for example, is a licensing service for the performers and record companies who perform, produce and invest in recordings. We will administer certain of those rights at the request of our members, and we will adapt our systems for when the legislation is implemented into national laws.

What do you feel is the effect of term extension from the point of the consumer?

DM: Consumers will probably notice very little difference. There is no discernible price differential at the moment. For example, an iTunes track is 79p, whether a recording is in or out of copyright. The legislation should have a positive effect on availability for two reasons. There is an incentive to invest in digitising, cleaning and marketing an old recording if you know your work is not going to be ripped off. Secondly, there are specific provisions in the legislation (use-it-or-lose-it) which incentivise release of old recordings.

JU: Fees payable for use of the copyrighted music would be payable by small businesses such as pubs, clubs, and hairdressers. This affects the whole community including consumers.

The Gowers Review in 2006 had warned that "most of the increased revenue from term extension would come directly from consumers who would pay higher prices for longer". Consumers would also be affected by archives and libraries being hampered due to rights clearance being necessary for the extended period.

Do you feel that the term extension is the product of a groundswell of support and agreement from a wide range of stakeholders?

JU: It is worth noting that the European Commission had originally proposed a term of 95 years, so the extension to 70 years is a minor concession. Organisations such as Electronic Frontier Foundation and the Open Rights Group should take credit for their efforts in this regard.

When Lord Mandelson, then-UK Business Secretary, announced the Digital Economy Act in October 2009, there was a suggestion there would be a drive to raise public awareness about copyright and copyright infringement. This was promised by the government in order to address cases of copyright infringement covered by the provisions of the Digital Economy Act. This awareness-raising has yet to happen. The Digital Economy Act was voted through (in April 2010) by Parliament in the final days of the previous Labour government; there was palpable outrage and objection at some of the controversial parts of the Act amongst online communities, while the awareness or concern amongst the members of the public was not apparent.

It is arguable that more needs to be done to ensure the public are more aware of the value of the public domain, and the consequences of the changes in law, such as this term extension, that is depriving the public domain.

DM: I was surprised at the level of support, especially from those who spent a little time actually understanding what was at issue. Performers were very vocal - 38,000 actually signing a petition.

That included many young musicians whose personal interest is many years in the future. At a political level, we had the support of all the main parties in the UK, a two-thirds majority in the European Parliament and a two-thirds majority in the Council of Ministers. Interestingly, when the Directive went back to the European Parliament in May this year, it was passed by an even larger majority.

Is term extension fair to small artists as well as the more well-known performers?

DM: The legislators went to great lengths to ensure the benefits flow through to the performers and created extra revenue streams for session musicians. The session fund takes 20% of all sales revenue in the extended term and applies that directly to session musicians. This revenue must be administered by a collective licensing body, such as PPL, and must be paid directly to the musicians.

JU: I personally struggle to be convinced by the argument that the session artists and the non-superstar featured artists benefit at any notable level. The Guardian provides some sobering figures: "figures estimated by a group of economists, intellectual property experts and music academics who studied the effects of copyright term extension: "the typical performing artist, the annual payout is in the lower hundreds of pounds and will not increase from extension ... £250 a year is not a pension."

It would appear to be that it is the rights and the contractual relationships between the artist and the others in the music industry that needs renegotiating, for a fairer deal for the artists who are not in the well-known Beatles league.

Does term extension take anything away from consumers, artists, or companies, and if so, what?

DM: This is a key question. Opponents of the legislation claimed that consumers would lose out. They won't. The losers will be the middlemen – the retailers and public domain companies - who have been trading on other people's work. Now they will have to get licences and pay royalties like everyone else.

JU: Term extension allows the record labels to retain control of works for a longer duration and so deprives the artists of the freedoms to exploit their own works as they choose. The artists are deprived of income and creative freedom. Consumers have to pay more for a longer duration for works that may have fallen into the public domain. Works those consumers could listen to, reuse, remix, without a licence or payment, is locked away by "all rights reserved" copyright for a couple of decades more.

Copyright is necessary, and may fuel creativity in the short term by providing an income to artists, but hinders creativity in the longer term by creating monopolies and preventing creative re-uses. It is worth reminding ourselves that copyright term was originally 14 years. Most (two-thirds) of the revenue from a recoding is said to be generated in the first six years. So, the arguments in favour of the extension to 70 years would appear to be unconvincing, but UK and European legislators do not agree.

Dominic McGonigal is Director of Government Relations at PPL.

Joscelyn Upendran is co-founder of Lovle and Public Project Lead (England & Wales) at Creative Commons. Her views in this article are personal and do not necessarily express those of her employers.

(Disclosure: Imperica's publisher Perini is a member of the Open Rights Group, although Imperica has always been, and will always be, editorially neutral and impartial.)