The 50 Year Copyright Conundrum
(Note: This was written, largely out of interest in the subject - which was receiving a lot of media coverage at the time - in July 2007. I had retired from writing for periodicals by this time but I offered it to 'Word', as Mark E had expressed some interest in it, and Jim Irvin very kindly edited it down to the form presented here from a much longer piece. Nevertheless, the moment passed and it was never published. I still find the subject fascinating and thought Afterworders might enjoy reading the piece.)
In September 1959, an inmate of Mississippi State Penitentiary named James Carter led his fellows in singing a work song, ‘Po’ Lazarus’, while chopping wood. In the vicinity with his tape recorder to hand that day, making field recordings for a series of albums on the American south, was Alan Lomax. Forty-one years later that recording made its way onto the five-million selling soundtrack to the American-made film Oh Brother, Where Art Thou? Two years after that, Mr Carter, by now aged 76, was tracked down and handed a royalty cheque for $20,000 - with the promise of much, much more to come. It was a heart-warming tale.
Right now, the British Phonographic Industry (BPI) desperately need a story like that, with one slight twist: they need a similarly successful film made in Britain and featuring a song performed 51 years ago, not 41, and they need its long-forgotten performer to cruelly miss out on the windfall that would have eased his twilight years. He would do so because of the ‘50 year copyright rule‘ on recorded sound, after which time the performance enters the public domain. The BPI need this kind of human interest, morally outrageous scenario because to date their campaign to influence the British Government to extend that term (it’s 50 years in the EU countries, recently extended to 95 in the US and elsewhere at various points in between) has been a failure.
The BPI Campaign
First up out of the trenches, with a Financial Times piece in April 2006, was Jethro Tull’s Ian Anderson - an erudite man, known to be scrupulous in administering the royalty arrangements of the many individuals who have played in his band from 1968 onwards. Part of his argument - which also involved the imminent death of new music if big record labels didn’t have the sales of 50 year old records to fund it - was that soon ‘various band members… will no longer be entitled to any income from their performances. For some, such monies account for all, or nearly all, of their current income.’ An emotive point.
The panel of experts on www.FT.com ’s New Technology Forum disagreed: ‘The original Jethro Tull, an 18th Century agricultural pioneer, seems to have been keen that others could build on his innovations,’ said James Boyle, Professor of Law, ‘because he realised that he had built on the innovations of his predecessors… Countries with shorter copyright terms have produced remarkable amounts of creative work, extension is not positively correlated with the development of new music. If funding new talent [a central plank of the BPI’s argument] was our social goal, extending copyright is a remarkably silly way to do it… What Mr Anderson’s proposal would do is to lock up all of our musical heritage, in order to benefit the tiny fragment which still has a commercial market.’
Or, as Boyle’s co-panelist and fellow Professor Thomas W. Hazlett put it: ‘As much as I’ve enjoyed Jethro Tull… musical appreciation for aged rock stars, or their heirs, does not make a compelling case for extending copyright term.’
Next into the ring was Sir Cliff Richard, wealthy and with a still healthy career, giving interviews in November 2006, ahead of the Government-commissioned Gowers report into the matter. Sir Cliff grabbed headlines but delivered no killer blow on the mass sympathy front. It was, however, a triumph compared to phase three: Simply Red’s Mick Hucknall writing on the subject in the Guardian later that month and generating a truly astonishing amount of invective from readers, viewable on the paper’s website. Despite a BPI-commissioned poll that showed that 62% of those polled believed British artists should receive the same copyright protection as the US counterparts (one can just imagine the loaded wording of the question), the campaign was less recruiting the public, more annoying them - ‘What? Tax exile rock stars wanting more money?!’
Who started all this?
Understanding the nature of copyright is at the heart of this. Copyright was never intended, anywhere in the world, as a perpetual monopoly or indefinite pension. It was designed to give the creator of a commercial product a marketplace advantage for a given period of time. The Queen Anne Statute of 1709 was the first British copyright law, rescuing authors from a nefarious monopoly by printers, giving them a grand 14 years head-start; in the US the first law was in 1790, also for 14 years. It’s been creeping ever upwards in the US in recent years thanks to the lobbying and political donations clout of huge corporations with vested interests and despite vigorous opposition from a broad church of public domain proselytisers - from various law professors downwards.
The analogy that copyright in a musical performance is equivalent to owning a house and having someone take it off you after 50 years is inappropriate. Rather, it’s like a kid building a go-kart, keeping it to himself for a while but later allowing the rest of the kids in the street to play with it while still occasionally using it himself. The go-kart builder would still be recognised as the builder and benefactor, but it would effectively become the whole street‘s machine, enriching the social experience of all concerned and maybe inspiring others to try building their own version. And of course the original builder could always build another bigger and better one for himself, and eventually pass it on too. Copyright is, in essence, a bargain between the creator and society. One man’s fair deal is, of course, another’s Faustian pact.
But how did this recent debate start? Well, in December 2005, the UK government asked Andrew Gowers, a former editor of the Financial Times, to undertake, in his words ‘an examination of Britain’s system of intellectual property (IP), how it is coping with the pace of change in the global economy, and what can be done to ensure that it remains fit for purpose.’ In December 2006, heralded by a flurry of pre-emptive pleadings from the BPI, Sir Cliff et al, Gowers delivered his recommendations. Amid all the dry trademarks and patents arcanery, grabbing the attention was that 50 year limit - a line in the sand after which the work, be it by Elvis, the Beatles or Uncle Tom Cobbley, becomes freely available for commercial exploitation by labels other than the one which first funded the recording or, indeed, by anyone at all with a CD writer and a pitch at a car boot sale.
The limit applies to the entity of the recorded performance alone, not the publishing right of the song being performed. UK songwriters, like authors, enjoy ownership of their work, and royalties deriving from it, for their lifetime plus 70 years thereafter (for their heirs) - which is similar to the current rights of songwriters and authors in the USA and practically everywhere else.
In short, if Paul and Ringo outlive the Beatles’ catalogue drifting into the public domain, Paul will still be entitled to songwriting royalties (shared with his publishers) from the sale of every CD/MP3/yet-to-be-invented-format but neither he nor Ringo will receive a penny - including, incidentally, from any continuing sales on their original EMI label, unless they choose to be generous - for their role as performers. Those who argue for parity of term for both writers and performers will, most compellingly perhaps, point out that when the law was first framed songwriters earned their money from sheet music sales - records were for many years a novelty item; now, of course, the relationship is symbiotic - each one, it could be argued, relies on the other
This looming situation - which, frankly, has been enshrined in law since 1911 so it’s not as if someone has suddenly moved the goalposts - may have catastrophic repercussions for the record industry or it may simply alter the balance between major label supremacy and niche market independents; it may well cause hardship for some individuals with a distant record-making past and the lack of a subsequent ’proper job’ or proper pension (just how big, one wonders, is this emotively resonant group?); and yet, setting aside the moral issue of whether cutting off an income stream for both the originating record label and originating artist is ‘fair’, it may also benefit in the long run the consumer in terms of both the range and quality of products deriving from recordings made before the 50 year cut-off point.
Crucially, from the government’s point of view, while some individual businesses - the likes of catalogue-rich giants like EMI, SonyBMG and Universal - and some individual artists and former artists may suffer, the business of recorded music in total, the innovation and creativity within it and the competition within the marketplace will be refreshed and maybe even enhanced. (Though quite why, bar free samples for hip-hop acts, music itself needs to be free for other musicians to build upon its innovations remains a fair question.) That, at least, was the thrust of Gowers’ report.
A Mickey Mouse Issue?
In the classical music world, particularly with the advent and ongoing improvements in digital remastering technology, there has long been a healthy trade in restored historic performances - sourced from pre-war shellac, post-war vinyl and previously unissued broadcast transcriptions. Such commercial activity is hardly going to make anyone rich, as James Jolly, Editor-in-Chief of classical music bible The Gramophone readily agrees, but it’s a corner of the music business which can be viewed, in a sense, as ‘publicly sponsored’ archivism for the general good:
‘When, say, EMI no longer has a particular recording from its deep catalogue available in any format,’ says Jolly, ‘yet criticises [a specialist label like] Naxos for reissuing it, it does make Naxos look like it’s doing a service to the consumer – which it probably is! There is a huge appetite for recordings of the greats of the past: so often first recordings [of key repertoire] have a quality that is unique and remains unassailable, however old they are - viz. Pablo Casals’ Bach cello suites, now available on numerous labels in addition to the original company’s remastering. There are a few companies who thrive entirely on reissuing out-of-copyright material: their USP is nearly always the quality of transfer, which, in some cases, is superior to that originating company’s – who use master tapes.’
Within popular music there are also labour-of-love driven labels dealing with particular areas of public domain music of yore, such as Document - whose aim is to, literally, document every recorded slab of pre-war blues there is - but the problem becomes morally thorny when that public domain period approaches the border, currently 1957, where many of those who created the music are still alive and, as the BPI and its allies attest, deserving of just reward.
Nevertheless, as Gowers pithily put it, ‘after ploughing through more than 500 detailed submissions from interested parties, my review has concluded that the system is not ‘broke’ and does not need a big fix.’
Gowers rejected the BPI mantra of extension to 95 years, in line with America after the controversial ‘Sonny Bono Copyright term Extension Act‘ of 1998, alternately known as ‘the Mickey Mouse protection act’, having been largely driven by Disney dollars for fear of The Mouse ‘going public‘ in 2004 - although there is a body of legal opinion in the US that owing to certain administrative oversights by Disney in the 1920s, Mickey Mouse may already be a public domain character. But God help the first guy over the wall with an unauthorised cartoon.
In a subsequent interview Gowers said that he ‘could have made a case for reducing it based on the economic arguments’, but opted for the ‘politically prudent’ course of not poking the bear. As he well knew, the whole matter would be looked at by the EU - where 50 years is widely accepted, and harmonisation of such rights the goal - so any unilateral UK term reduction would have been futile and certain to be reversed by EU treaty obligations.
In early December 2006, 4,500 artists put their names to a newspaper advert calling for an extension - the likes of Sir Paul McCartney and U2 lining up with the Beverley Sisters and Dame Kiri Te Kanawa - waiting for the Government’s formal reaction to Gowers. In January 2007, an EU report agreed with the 50 year term, arguing that any extension would prolong the major labels’ market dominance ’to the detriment of competition’. On May 1st 2007, tied into the 50th anniversary of Lonnie’s Donegan’s chart-topping ‘Cumberland Gap’, an Early Day Motion signed by 88 MPs urged the Government to plead with the European Commission on the ‘iniquity’ of the situation. Later that month, a Commons Culture, Media & Sport Select Committee report put individual compassion before business arguments, suggesting that Gowers had failed to give appropriate weight to the ‘moral right’ of Sir Cliff to retain ownership of his 1958 performance on ‘Move It’ for his lifetime, and concluding that an extension to 70 years should cover this.
Lined up against the BPI, Sir Cliff and the rest in all this were a curious collection of institutions and individuals: the British Library (concerned at preservation restrictions on within-copyright holdings); the Open Rights Group and its poster boy, Blur’s Dave Rowntree; Louis Barfe, author of Where Have All The Good Times Gone? The Rise And Fall Of The Record Industry (who singled out, rightly, the appalling VFM and packaging of the Beatles albums on CD as an example of how anyone else could do the job better given the chance - as vintage-vinyl-mastered Japanese bootlegs already prove); and the Institute For Public Policy Research think-tank, whose Kay Withers memorably called the issue ‘the Goldlilocks problem’ - a case of the Government having to protect copyright at a level that is ‘not too much, not too little, but just right.’
‘Aside from throwing TV's out of hotel windows,’ says Dave Rowntree, ‘there are two main jobs in pop music - writing it, and playing it. Playing is by far the easier half, and this was recognised when copyright law was first implemented. Composing needs far more creative effort, so composers were given a longer copyright term to earn more money. It is interesting that many of the people that complain that this is unfair don't write their own music.
‘In any case, the right to earn from making music is a privilege given to musicians by society. Obviously musicians want to be able to earn from each piece for as long as possible, but it's the public that has to keep putting their hands in their pockets. If musicians and record
companies have more money then everyone else has less money. Extending copyright is one way of encouraging this cashflow by the back door. The industry has tried to sell term extension to the public by couching it in the language of 'protection' but sadly it is profits they are trying to protect, not artists. As many creative industries have found, if major labels looked after the artists, the profits would look after themselves.’
By April 2007 Ian Anderson had discussed the issues with Gordon Brown, while the broadcast royalties collection agency Phonographic Performance Ltd (PPL) compiled an exclusive CD entitled Copyright Gap (inspired by Lonnie Donegan’s soon-to-go-public 1957 hit ‘Cumberland Gap’) and featuring major acts like the Beatles, the Who and Led Zeppelin (ironically, their notorious Willie Dixon copyright-busting ’Whole Lotta Love’) which was sent as a lobbying device to MPs.
In what looked like a last throw of the public-sympathy dice, the BPI fronted up the widow of Lonnie Donegan, whose prolific hit-making career spanned 1956-62. Lonnie was a great performer right up to his death in 2002 and surely held in fond regard by the masses. I personally saw him twice towards the end, playing to huge crowds and the tickets weren’t cheap - he had a good innings, and an Indian Summer to his career, and that was delightful to see. But Mrs Donegan (aged 50) scored a spectacular own goal with her pleadings of imminent poverty: ‘Someone like Lonnie works all his life and then there’s nothing at the end of it,’ she told The Times, ‘not even a pension… People say I must be a millionaire but, no, the royalties were just enough to get by.’ Oh? And what were they? £30,000 - £40,000 a year apparently. I earn, as a librarian, half of that and I still manage to contribute to a private pension: why the hell didn’t Lonnie? Did he think the world owed him a living in perpetuity?
‘Welcome to the real world,’ said one of many similarly disgusted readers on the paper’s web forum; ‘My old man’s a musician, he gets paid for 50 years,’ snarled Jack Malvern in the paper’s Thunderer editorial column, going on to suggest that Mrs Donegan might consider getting a job. ‘Donegan knew the terms of his contract,’ it went on. ‘If he thought them unfair he could have taken another job. Plumbing, say, or teaching. Do plumbers get a royalty every time someone turns on a tap? Do teachers get a share of their high-flying pupils’ future income? Of course they don’t.’
And then finally… in July 2007, the UK Government responded to the deliberations of both Gowers and the Culture Committee and rejected any extension beyond 50 years, saying that such ‘would have a negative impact on the balance of trade and that it would not increase incentives to create new works’. It also noted, testily, that the BPI’s issue of wanting parity with the US was not the like-for-like it seemed, as ‘although royalties were payable for longer there, the total amount was likely to be similar - or possibly less - as there were fewer revenue streams available under the US system.’ An example of this would be the use of background music in bars and restaurants - revenue is collected for such useage in the UK, but not in the US. With this sop of wisdom, that the grass over there isn’t as green as you think it is, the 50 year coffin was nailed. The BPI will take it to the European Commission - whose judgment the UK Government has pledged to accept - but without their own Government on side they’re wasting their time.
Mastering The Problem?
‘Is it true that if we just struck a tambourine on any old recording we would extend its copyright from the day that the tambourine was added? I believe the law says it is,’ muses Ace Records’ Roger Armstrong. He may well be right - although the prospect of a load of ‘50s pop classics suddenly developing shiny new 21st Century percussion parts feels like a loophole so yah-boo-look-at-me as to indanger the credibility of the records/artists in question if taken too far. That said, Armstrong’s musing is based on a genuine 2002 repair, by an original member of the Zombies, to an incomplete master of ‘She’s Not There’ (1964) for Ace‘s Zombie Heaven box set, thereby extending its copyright to 2052. But this ‘manoevre’ may only work if undertaken while the original work is still in copyright - commentators generally feel that once a piece has slipped into public domain hell it remains, like Euridice, irretrievable from Hades however much Orpheus may weep, wail or indeed bang on his tambourine.
A more profound question - as yet unanswered in UK case law - is whether digital (re)mastering, be it undertaken within or without of the 50 year safety zone, results in a legally ‘new’ master. It all boils down to the interpretation of whether the process constitutes the earnest exercise of ‘skill and judgement’ or whether (as was the case of mastering vinyl in the analogue era) it is merely a technical process, transferring sound from one medium to another. Remixing is already generally viewed as safely through that gate - even though a fool could remix a basic two-track 1950s tape badly, whereas anyone remotely familiar with the technical complexities, creative decision-making options and near-miraculous potential for sonic enhancement in digital mastering would surely regard it as the blacker of the two arts.
‘Our legal advice is that a digital copy is a new master and so acquires a copyright from the date it is produced,’ says Armstrong, ‘therefore if I master something, put it on a CD and someone lifts it then they’re lifting a new copyright not an old one. If they go back to, say, BB King’s original [pre-50 year] 78s and copy them onto CD then its their master and they can do that - but if they go and lift the material from my CD, with recordings I’ve taken from the original acetates [by arrangement with the artist and the original label] and have spent time and money cleaning up, then they, we believe, are breaching my copyright. The one remaining moot point, though, is whether the music in question has been mastered and received that ‘new copyright’ within 50 years. A very moot point.’
It’s that Orpheus and Euridice question again: once gone over the line, can a sound recording ever be ’rescued’ by a new copyright? Over in America, recent case law involving Capitol/EMI trying to stop classical budget label Naxos - a successful and respected worldwide business who deal in new recordings and licensed reissues as well as ‘historic’ public domain releases - selling a CD featuring 1930s EMI recordings by Pablo Casals and Yehudi Menuhin, suggests not. At least, not there.
In this case, Capitol had the very same performances available on CD themselves though, embarrassingly, reviewers had lauded the substantial improvement in sound on the Naxos remasterings taken from original 78s (from the collection at Yale University Library). Capitol alleged unfair competition, misappropriation of property, unjust enrichment and copyright infringement. In 2002 the court in New York threw out these charges, noting the ’labour, skill and artistic choices’ involved in Naxos’ remastering, the fact that they’d used freely available 78s and even suggesting that Naxos’ restorations had possibly even ‘revived the relevant market in historical classical performances to Capitol’s benefit’. And furthermore, ‘the Naxos restorations help ensure that quality historic performances are commercially available for the present generation and well preserved for the next.’ Capitol appealed on the basis of New York ‘common law’ - the body of unwritten civil law created by court rulings - and two years later the judge ruled that ‘New York provides common law copyright protection to sound recordings not covered by the federal copyright act [of 1972], regardless of the public domain status in the UK, if the alleged act of infringement occurred in New York.’ Naxos withdrew that particular CD from American stores.
Though specific only to New York state, the ruling is believed to establish a precedent probably applicable to all the US states. American copyright law is fiendishly complex. There was, incredibly, no federal copyright law protecting sound recordings before 1972, rather a patchwork of state common law (like that tested by Capitol vs. Naxos). As of now, since the Sonny Bono extension law, it’s generally believed that there is basically no commercially released sound recording since 1923 that can be regarded as public domain. A remarkable turnaround from the 19th Century free-for-all scene that Dickens so railed against.
‘The American system is weird,’ says Roger Armstrong, ‘in that pre 1972, with no copyright law, it’s essentially based on a kind of ‘unfair competition’ over there, which does hold sway. The unfair competition principle basically says, ‘You’re the guy who made the record, you’re the guy who spent the money, you’re the guy who stores the tapes and therefore it’s unfair that somebody else takes that and profits by it’.’
But back in the UK, and dealing with ‘enhancements’ mind-bogglingly hard to grasp to the layman - and yet with implications which make life tougher for the most adventurous parts of the already ailing classical music industry, let alone (potentially) parts of the pop world - is the curious case of Dr Lionel Sawkins vs. Hyperion Records, heard in the UK High Court in 2004, won by Sawkins and unsuccessfully appealed by Hyperion.
In essence, the question was this: did Sawkins, an expert on the music of 17th Century French choral composer Michel-Richard De Lalande, employed for a set fee by Hyperion to prepare modern performing editions of certain Lalande works to appear on their 2002 release Music For The Sun King, have any copyright over these editions (essentially, ‘translations’ into modern musical notation from various arcanely notated sources) and consequently any right to demand royalties, as he believed to be the case?
Remarkably, to many observers, the law was on his side. In a judgement that remains rather hard to get one’s non-legalistic head around - like the mathematical paradox of degress of infinity within a still greater infinity - Appeal Court judge Lord Justice Mummery concluded that even though Sawkins’ contributions to the scores were editorial rather than compositional, he had in fact ‘created’ something that had not existed before… and even though Sawkins himself had expressly declared that he had not rewritten, arranged or typographically interfered with the music, which remained entirely Lalande’s. Of course, only one of them is currently available to collect the royalties - except that Hyperion, obviously, withdrew the disc and now everyone in the classical scene is terrified of employing an academic expert to edit neglected repertoire, which means a less rich musical landscape for listeners and performers. Ironically, Dr Sawkins - the world authority on Lalande - has probably ensured that, realistically, very little of the man’s music will ever be heard again.
‘I think,’ says The Gramophone’s James Jolly, ‘the Sawkins affair has made the industry more aware of rights over editions. Increasingly companies demand that the artists involved in a recording either negotiate the rights themselves, buy out the edition rights or do it themselves and make no claim for the edition.’
Where this may offer a glimmer of hope to the likes of Ace Records in their painstaking remasterings of vintage rhythm’n’blues, rock’n’roll and soul music (almost always from American sources, which must be some kind of irony) is in the fact that Sawkins was being granted a copyright by the Appeal Court substantially on the basis of his expenditure of expertise and man hours - attributes Ace’s mastering engineers will certainly identify with. Whether the principle is transferable from sheet-music reconstruction to sound reconstruction - both essentially taking something which already exists, applying skill to it and re-presenting it in a way that is simultaneously authentic and yet, crucially, something which has not existed before - is yet to be determined. And if/when it is, Ace Records and no doubt other labels-of-integrity in the vintage music world, such as hillbilly/rock’n’roll/calypso specialist Bear Family (labels who both, incidentally, pay royalties to licensor labels and artists regardless of the 50 year thing) will be coming after a lot of rip-off merchants. They know who they are.
Nevertheless, with the Sawkins affair one precedent has now already been set: it is possible for someone to copyright a piece of music in the public domain, at least in terms of its publishing rather than performance rights. And precisely where the bar is set for that to happen - one grace note applied to a traditional tune, perhaps? - is anyone’s guess. With exquisite circularity, Lord Justice Mummery, in his days as a humble QC in 1969, had given counsel to Transatlantic Records on a matter that may seem completely unrelated but in fact pirouettes around the same infinitesimal points of law: the case of Bert Jansch vs. Led Zeppelin on the question of whether the Jimmy Page-credited ‘Black Mountain Side’ on Led Zeppelin (Atlantic, 1969) was a blood relative of Jansch’s highly distinctive arrangement of the Irish traditional song ‘Blackwater Side’, on Jack Orion (Transatlantic, 1966). The unknown quantity being this: was it possible in law to copyright an arrangement/version/interpretation of a public domain piece of music? At the time, Transatlantic blinked first and the question never got to court. But 36 years later, Mr Mummery is clearly satisfied the answer was, and is, yes.
Use it or lose it?
Another question related to the 50 year limit concerns neglected recordings languishing in major label vaults often for many years before the 50 year line is crossed. In many cases, the very same artists the BPI are suddenly so concerned about could do with the modest income an ‘official’ re-release of their old work would generate.
‘This isn’t BPI policy,’ says Roger Armstrong, ‘but my personal view is there should be a ‘use it or lose it’ rule with vintage music still within copyright, where the copyright owning label has to make some kind of response to an approach from the artist or a license request from another label if the copyright owners themselves don’t want to put something out.’
One example is the situation encountered by 1956-63 hit-making crooner, and UK Eurovision entry for 1962, Ronnie Carroll, who these days enjoys periodic parliamentary candidature for ’Rainbow’ George Weiss’ Vote For Yourself/Make Politicians History Party: ’A few years back,’ says Roger Armstrong, ‘Ronnie went to Universal [who own his Philips label releases] and said, ‘Look, you guys, you’re not putting my stuff out,’ and they said, ‘There’s no market for it’. And he said, ‘Well, I think there is - I can sell it at my gigs’. And eventually they gave his catalogue back to him.’
Ronnie found that two self-generated CDs of his vintage material were viable and in 2005 released a well-received comeback album.
In similar vein, another ‘business model’ we will probably be seeing a lot more of involves an active collaboration between a vintage artist with a potentially higher level of ‘mileage’ in their near-50-year-old work and the label who owns it - a case of going for one last big sell before the out-of-copyright guys have their way. It doesn’t take a genius to note the timing of British rock’n’roll pioneer Marty Wilde’s ‘50th anniversary’ album back in April 2007, Born To Rock’N’Roll - The Greatest Hits, released in collaboration with Universal - featuring all his key vintage material (hits spanning 1958-62) plus two new tracks, TV advertised and accompanied by an extensive UK tour, media interviews and a decent website (www.martywilde.com). The result being that by now - with a heavily-promoted, artist-endorsed album that made the UK Top 20 - the vast majority of people who want Wilde’s old material on CD will now have it, with both artist and copyright-owning label benefiting - to the chagrin of public domain operators lurking just on the other side of that calendrical line in the sand. As portly menhir salesman Obelix notes in Obelix & Co, a brilliantly observed poke at capitalism in the Asterix series, menhirs don’t wear out very quickly: once people have one, they generally don’t need another. Ditto, one suspects, a Marty Wilde hits collection.
One door closes, another one opens
‘It is good that authors should be remunerated,’ said Thomas Babbington Macauley, addressing parliament in 1841, ‘and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.’
Heady stuff, couched in the earnest language of its day, but undoubtedly paraphrased less diplomatically as ‘I wish those bastards would stop ripping me off’ by Charles Dickens on his lecture tours of the States - the stadium rock events of his day - where he would routinely find everyone and his dog flogging unauthorised copies of his books, entirely within the law of that land - the land ‘of the free’. Sir Walter Scott, he believed, had been driven to bankruptcy and an early grave thanks to the rampant American bootlegging of his works. Sir Arthur Conan Doyle, moving into the 20th Century, was another victim of America’s refusal - relenting only in 1986 - to sign the 1887 Berne Convention, protecting author, composer and visual artist copyrights internationally.
Even JRR Tolkien, in 1965 for goodness sake, found himself embattled with Ace Books, a cheapo Sci-Fi publisher, over an unauthorised - yet apparently, thanks to bookbinding anomalies and registration oversights by his authorised US publisher Houghton Mifflin/Ballantine, perfectly legal - edition of his Lord Of The Rings trilogy. It was only constant pressure from fans and the US media over the course of a year, on the ethics of this opportunism, which obliged Ace Books to not only desist but to pay Tolkien voluntary royalties (amounting to $9000) for their 150,000 copies sold. Where there is money to be had, there will always be vultures circling, and it was to be as late as a 1992 district court case in New York against a local book distributor that JRR’s son and literary executor Christopher finally, definitively settled the lingering question marks - quite baffling at this remove - over the legitimacy of The Lord Of The Rings’ US copyright.
So how does this relate to the 50 year music copyright question? Well, the Ace Books affair may offer a glimpse of how things might pan out not only for Ace Records (no relation) and its peers at the quality end of the reissues industry, but also for individual artists of sufficient vintage. What it proved was the intelligence and integrity of the general public not to be fed a crappy, morally questionable copy of something that exists in a more ‘authentic’ or better produced version elsewhere. The only action within Professor Tolkien’s power during the months of uncertainty, when it looked as if his masterpiece was forever doomed to the public domain, was to urge word of mouth support through correspondance with his American readers and to have a notice printed in the official paperback stating that, ‘This paperback edition, and no other, has been published with my consent and co-operation. Those who approve of courtesy (at least) to living authors will purchase it and no other.’ As Wayne G. Hammond and Christina Scull relate in The JRR Tolkien Companion & Guide (2006), ‘Altogether this produced a groundswell of opinion in Tolkien’s favour which seriously undercut sales of the Ace edition, even though the Ballantine Lord Of The Rings was more expensive by 20 cents per volume.’
All this, remember, was achieved decades before the empowering immediate communication facility of the internet. The only other possible difference, though, is whether our sense of ethics as a people have changed. I’d like to think that by and large they haven’t. If a regular, knowledgeable customer of Ace Records or any of the other labels who are passionate about presenting vintage music in lovingly packaged form, using the best sound sources and painstaking mastering, were to be faced with, say, an Ace product at £10.99 and a minimally packaged £2.99 variation on the same thing from Del Boy Records Inc. (which may or may not have ripped off the mastered sound from the Ace disc), I’d like to think that a viable number of those interested would support the Ace version. Sure, most of us aren’t rich, but we’re not stupid either.
‘Like any business,’ says Roger Armstrong, ‘you work at the margins. With all this very old stuff you’re going to sell 1500 - 2500 of most of it, with a following wind. Given the money we spend getting the audio right, the first 1000-1200 just pays the bills. If we sell 1500 it’s the 300 which makes it worth doing for us. If the out-of-copyright labels eat into that 300 I’m eventually going to get discouraged and stop doing it anymore. This ‘music should be free, man’ thing is like a really bad hangover from the ‘60s. I don’t know why they pick on music - why not free books or whatever?’
The same Tolkien vs. Ace Books principle of mobilising the right-thinking public applies, even more so, to individual artists. There is absolutely nothing to stop Sir Cliff Richard - and Sir Paul and Ringo when their time comes - from releasing editions of their own public domain works or, like Marty Wilde, engineer a dazzling cusp-of-threshold final payday - with their own bells and whistles in terms of packaging and mastering with, say, a newly recorded track as additional incentive which they alone can provide. Casual buyers, of course, may prefer the £2.99 stuff, and that in itself helps British business in the way the Government see the bigger picture, but maybe that person would never buy a full price CD of that artist’s work anyway - it’s an extra sale, not a lost one. But if you really loved and knew an artist’s work and respected their right to profit from it, would you not willingly want to honour them, and no opportunist rival, by buying direct?
And if the BPI and their mobilised raft of millionaire rock stars are really so concerned, might it not be wiser - instead of pursuing the surely now futile cause of UK copyright extension - to establish some kind of fund, from major label and rich rock star donations, to help the less fortunate vintage musicians who genuinely need the modest sums their reissued public domain recordings would bring in - or, in a more dramatic scenario, the potentially vast sums involved in a Moby-esque situation whereby an out of copyright performance by a still living performer is used as the basis for a huge-selling/advertiser-licensed new work by someone else. Such help needn’t be in cash necessarily, but in providing, say, an easy one-stop service to help a given vintage artist create artist-authorised CDs and market them via an industry-supported retail website. A place where everyone purchasing would know the money was going straight to the artist - the music equivalent of Fair Trade coffee: a higher price, perhaps, but plenty of ethical, informed consumers make it work. It’s only an idea, but it would cost the industry and the likes of Sir Cliff, Sir Paul and the rest peanuts to make it happen. The copyright fight, like it or not, is probably over lads - if you really care about the likes of Ronnie Carroll and his peers, start thinking outside the box.
For those artists whose work falls into the public domain in their lifetime, it comes down to this: getting the record buying public onside, buying your product not someone else’s (even if you are, in a sense, in competition with ‘yourself’). And that, after all, is what being a record-making artist is all about and always has been. You make your record and you take your chance. The world doesn’t owe you, me or anyone else a living. Life’s not fair, but we can all, to a degree, make our own luck. As Elvis once said, it’s now or never.
(with thanks to James Jolly, Roger Armstrong and Dave Rowntree)