Sir Cliff Richard appears set to lose a battle to extend the number of years that musicians can receive royalties for their records, the BBC has learned. He wants copyright to last 95 years, rather than the present 50 years. But an independent review is to recommend the terms are not extended, a well-placed government source has said.
Yet while the incentives produced by term extension are tiny, the costs are huge. The vast majority of 50-year-old recordings have no commercial value. That means many of these recordings are “orphans” – works whose owners cannot even be identified. Extending the term for these works will simply guarantee they remain orphans. For another 45 years, libraries and archives would be forbidden from making these forgotten works accessible, because they cannot clear the rights to them. Sir Cliff would thus get 45 more years of royalties, while pushing forgotten Sir Cliffs into further oblivion.
If the economics are so clear, why is this question so hard for governments? The answer is that famous copyright holders are among the most beloved of any nation. They are favourite friends of politicians. So, whenever the question of term extension has been raised, governments have said yes.
The Court adopted neither position. It refused to apply ordinary First Amendment review to a copyright statute. But it also refused to exempt copyright statutes from First Amendment review. Instead, as the Court wrote:To the extent such assertions [assertions where someone claims a right to “make other peoples’ speeches”] raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D.C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” 239 F.3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.
This is a kind of tradition-triggered standard: So long as Congress stays within the “traditional contours of copyright protection,” then further First Amendment review is unnecessary. But if Congress changes a “traditional contour of copyright protection,” then the “built-in free speech safeguards” may not be sufficient.
Read more about Kahle v. Gonzales from Lawrence Lessig’s blog