That’s [Not] All Right

Elvis Presley is on the charts again but the owners of That’s All Right are worried because as of January 1 2005, Presley’s 50 year old classic enters the public domain in Europe.

Under current EU law, sound recordings are classified as “performance” and copyrighted for a period of 50 years. This is not to be confused with compositions, which remain in copyright for the artist’s lifetime plus 70 years…

Nevertheless what this law does mean is that, from January, anyone may store, share, swap or commercially release That’s All Right without recourse to RCA, who currently own rights to the track as part of their back catalogue. …

Faced for the first time with losing significant back catalogue profits, the industry is lobbying to change the law. …[But]for every one recording that has the power to reach number three in the commercial charts fifty years after its original release, there are hundreds if not thousands of tracks that do not.

Although these recordings no longer have any commercial value to their rights holders, they are of tremendous value in terms of our cultural heritage. But the mechanisms of copyright law mean that, should the European Parliament choose to heed the music industry, keeping Elvis out of the public domain for a further 45 years or even more, the King will drag down with him this huge body of commercially worthless but culturally significant work.

Works of no commercial value will be orphaned, languishing in forgotten store cupboards at record company headquarters when they could be enjoying a digital rebirth in the public domain.

A solution to this problem is already in use for patents. Renewal fees. Renewal fees for copyright extension would allow Disney, RCA and those few others with very valuable property rights to maintain those rights while at the same time the vast majority of “commercially worthless but culturally significant work” would flow into the public domain.

Note that I am not arguing that we should extend the rights of Disney, I stand with my betters in seeing little benefit to doing so, but if political pressures force policy in that direction we need not lock everything up in order to protect the few cash cows. A renewal system should be politically viable because the fees can be made low enough so as not to greatly concern Disney or RCA, yet high enough so that most works will flow to the public domain. Owners of profitable works will benefit and owners of non-profitable works will not be harmed.

Aside: Suzanne Scotchmer has an important but difficult paper arguing that renewal fees can be optimal. Here is another clever idea to improve the patent system. As usual email me if you can’t access the link.


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