Breaking the deal

I hired an artist to paint a portrait. I offered $500. He agreed. We had a deal. He painted the painting. I liked it. I gave him the money. A few years later he returned. “You owe me another $450” he said.

We looked at the contract. “But you agreed to paint it for $500 and I paid you that amount.” He admitted this was true, but pointed out that painters in other countries sometimes received higher amounts, as did sculptors in our own country. In fact, he told me, all British painters planned to demand another $450 for each picture they had already painted as well as for future pictures. This would “harmonise” our prices with other countries, put painting on the same footing as sculpture, and enable painters to hire more apprentices.

His other argument was that painters often lost money. Only changing the terms of their deals long after they were struck could keep them in business. Paying the money was my duty. If I did not pay, it meant that I did not respect art and private property. I told him this was absurd. “Really?” he said, “we got the idea from a proposal about the copyright term over recorded music. The recording industry thinks it is brilliant!”

The copyright term for sound recordings in the UK is 50 years. (It is longer for compositions.) The recording industry, as well as successful artists such as Sir Cliff Richard and Ian Anderson of Jethro Tull, wish to extend that term to 95 years, or perhaps even longer – the life of the singer, plus 70 years. This proposal is not just for new recordings, but for the ones that have already been made.

Obviously, 50 years of legalised exclusivity was enough of an incentive to get them to make the music in the first place. Now they want to change the terms of the deal retrospectively. They say this will “harmonise” the law internationally, give recordings the same treatment as compositions, help struggling musicians, and give the recording industry some extra money that it might spend on developing new talent. (Or on Porsches, shareholder dividends and plastic ducks. If you give me another 45 years of monopoly rent, I can spend it as I wish.)

Is this idea as outrageous as the demands of my imaginary painter? No. It is much, much worse.

The majority of sound recordings made more than 20 years ago are commercially unavailable. After 50 years, only a tiny percentage are still being sold. It is extremely hard to find the copyright holders of the remainder. They might have died, gone out of business, or simply not care. These are “orphan works” – a category that comprises the majority of 20th century cultural artefacts.

Yet without the copyright holder’s permission, to copy or redistribute these works is illegal even if it is done on a non-profit basis. The goal of copyright is to encourage the production of, and public access to, cultural works. It has done its job in encouraging production. Now it operates as a fence to discourage access. As the years go by, we continue to lock up 100 per cent of our recorded culture from a particular year in order to benefit an ever-dwindling percentage – the lottery winners – a grotesquely inefficient cultural policy.

Finally, 50 years after they were made, all recordings enter the public domain and can be made available freely by and to anyone in the country. But not if the record companies can persuade the government-commissioned Gowers Review on intellectual property otherwise. Like my imaginary painter, they want to change the terms of the deal retrospectively. But at least the painter’s proposal would not make 90 per cent of paintings unavailable just to benefit a tiny minority of current artists.

I have an idea for the Gowers Review. The recording industry’s proposal for retrospective extension is effectively a tax on the British music buying public to benefit the copyright holders of a tiny proportion of sound recordings. The public loses twice. It loses first when it is forced to continue to pay monopoly prices for older, commercially-available music, rather than getting the benefit of the bargain British legislators originally offered; 50 years of exclusivity, then the public domain. The public loses a second time when, as a side effect, it is denied access to commercially unavailable music; no library or internet enthusiast can make the forgotten recordings available again.

The whole idea is very stupid. But if this is the stupid idea we wish to pursue, then simply increase the income tax proportionately and distribute the benefits to those record companies and musicians whose music is still commercially available after 50 years. Require them to put the money into developing new artists – something the current proposal does not. Let all the other recordings pass into the public domain.

Of course, no government commission would consider such an idea for a moment. Tax the public to give a monopoly windfall to those who already hit the jackpot, because they claim their industry cannot survive without retrospectively changing the terms of its deals? It is laughable. Indeed it is. Yet it is a better, saner proposal than the one before us. Which tells us something about the current state of copyright policy.

James Boyle is Professor of Law at Duke University. His newest book is a literary mystery called The Shakespeare Chronicles, available in paperback, hardback and for download here