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EU: Copyright Loophole Exposes 'Golden Oldies' Of Pop Music

A potential trade dispute between the United States and the European Union is looming over the issue of copyright protections on music recordings. RFE/RL examines the legal background of an emerging controversy over who can profit during the next decade from the legacy of pop-culture icons like Elvis Presley, the Beatles, and the Rolling Stones.

Prague, 9 January 2003 (RFE/RL) -- The European Union's 50-year copyright protection rule on musical recordings is allowing thousands of records from the early 1950s to enter the public domain in Europe -- even though U.S. law protects the rights of record producers until 95 years after a recording is first released. Industry experts say the difference between U.S. and EU copyright laws on musical recordings could lead to a trade dispute during the next decade.

That's because the earliest records by musicians that continue to have a mass-marketing appeal -- pop icons like Elvis Presley, Bob Dylan, the Beatles, and the Rolling Stones -- are all due to enter the public domain in Europe during the next 10 years. Yet those same recordings will remain under exclusive copyright control in the U.S. market for an additional 45 years.

On one side of the emerging dispute is a powerful lobby group that represents U.S. music corporations -- the Recording Industry Association of America (RIAA). The RIAA helped successfully lobby the U.S. Congress in 1998 to extend existing U.S. copyright protections by 20 years. On the other hand is an EU copyright directive that took effect in 1996 after complex international trade negotiations.

Stefan Krawczyk is the Eastern European regional director of the International Federation of the Phonographic Industry (IFPI). He told RFE/RL that the EU directive has, in fact, helped the record industry protect many of its interests by harmonizing laws across all EU countries. "We're very fortunate to have a whole range of harmonized laws on copyright in the European Union. It's about a half-dozen harmonization directives that clearly and exclusively deal with copyright issues and neighboring rights -- the rights of performers and phonogram [any recorded audio product, such as CDs, vinyl records, cassettes, etc.] producers, as well as songwriters."

Krawczyk said that the EU directive also has encouraged EU candidate states in Central and Eastern Europe to bring their own copyright laws in line with Brussels and the World Trade Organization (WTO) in order to meet the conditions of EU membership. "Most of these countries -- the [EU] accession countries -- have already implemented these harmonization directives [or] are really at the final stages of implementing them. And you can see that from the progress reports issued by the European Commission very recently about accession progress. The legislative part of their work is almost done."

The key difference between the U.S. and EU laws involves only the recordings of music. In both the United States and Europe, the publishing rights for those who write a musical composition are equal to the life of the composer plus 70 years. That means that the families of composers continue to collect royalties on performances of a song by other artists until 70 years after the composer has died.

Thus, those most affected by the differences between the U.S. and EU laws are the companies that produce a hit record and the original recording artist -- not the person who wrote the music.

Neil Turkewitz, the RIAA's executive vice president for international affairs, told "The New York Times" this week that he is concerned the EU law will allow cheap European CDs to undercut the U.S. domestic price for legendary music recordings. Turkewitz contends that the import into the United States of such recordings in the form of EU-produced public-domain CDs would constitute an act of piracy. As a result, the RIAA is attempting to convince U.S. authorities to erect a customs barrier to prevent such European products from entering the United States.

If the U.S. lobby group is successful in establishing those customs barriers, European interests can be expected to file suit with the WTO claiming that protectionist policies block their products from the U.S. market. Thus, the RIAA and its international counterpart, the IFPI, also are trying to convince EU countries to extend copyright protections for the producers of musical recordings.

But such a lobby effort appears unlikely to be successful. The EU law was formulated and agreed to by its member states only after laborious negotiations during the early 1990s at the Uruguay Round of the General Agreement on Tariffs and Trade, which included the U.S. trade representative. That means the EU law conforms to the rules of the World Trade Organization.

The IFPI's Krawczyk admitted as much when questioned by RFE/RL specifically about the EU law. "The WTO agreement on Trade Related Intellectual Property Rights -- the famous TRIPs agreement -- also provides for a term of protection for phonogram producers and performers that is [a minimum of] 50 years. [That is] exactly the same term as we have in the European Union directive."

Once a musical recording enters the public domain, the company that originally produced the record is no longer able to stop anyone from making and selling legal copies. The authors of a song are still entitled to royalties. But the record companies are not.

Essentially, CDs and cassette tapes once considered as illegal pirate counterfeits become legal in Europe after the original recordings turn 50 years old and enter the public domain. And it doesn't matter whether the original recordings were made and first released within the EU or in other countries.

RCA's 1946 recording of "That's Allright Mama" by American blues artist Arthur "Big Boy" Crudup is a primary example of the kind of public domain music that European consumers have been able to purchase cheaply since the EU's harmonized copyright code took effect in 1996.

Indeed, the most lucrative recordings to enter the public domain in Europe so far have been old 78 rpm records of blues, jazz, opera, and classical music. Companies in France, Italy, the Netherlands, and Germany now routinely produce legal audio compact discs compiling such 78 rpm records. Without the requirement of paying royalties to the original record producers, firms like the U.K.-based Charley Records, Holland's Disky Communications, and France's EPM Remastering are able to sell public-domain CDs for as little as $2 each. In America, where the producers of the same recordings still exercise copyright control, music collectors routinely pay $15 to $25 per CD for the music.

But the global demand for old blues, jazz, and classical recordings is not nearly as large as it is for the hits of the early rock and pop era -- recordings that are just now starting to enter the public domain in Europe. Elvis Presley's earliest records will be fair game for Europe's public-domain labels at the end of next year.

Multimillion-selling records by rock and country music pioneers like Carl Perkins, Roy Orbison, Johnny Cash, and Buddy Holly will follow soon after. The entire recording catalog of U.S. country music legend Hank Williams -- who died 50 years ago this month -- is already in Europe's public domain. The earliest Beatles and Rolling Stones records are due to become part of the public domain in Europe at the end of 2013. That leaves the door open for CD producers across Europe -- including well-known pirate CD firms in the accession countries -- to increasingly and legally reproduce "golden oldies" of rock and pop music during the decade ahead.