Rock 'N' Roll 'Swindle' - The day the royalties die

It is the greatest pension fund raid of all time. The stars who created rock'n'roll are about to lose the rights over the classic hits that made them famous.

From January 1, 2005, anyone will be able to release landmark rock'n'roll recordings such as Elvis Presley's That's All Right without paying a penny in royalties to the performer or their estates.

But the rockers are fighting back. Sir Cliff Richard is launching a campaign to close a loophole in European Union law, which means that artists and record companies lose exclusive rights to their sound recordings after 50 years. If he and others are unsuccessful, the ruling will mean that the rock'n'roll years will become a free-for-all, wiping billions of pounds off the value of record companies.

Releases will fall into the public domain, year-by-year, with the Beatles' catalogue becoming available from 2013. Recordings can be digitally manipulated or used in films and advertisements with the artist having no say over their repertoire. Sir Cliff, whose 1958 Move It single is cited as the first authentic British 'rock' hit, told The Times: 'As I get older I am told that I have achieved many chart 'firsts'. Now I am the first person to be deprived of income simply because I have outlived the copyright on my sound recordings'.

The most successful singles artist in British chart history, Sir Cliff, 63, said that he was leading a fight for music's unsung heroes. 'I am very fortunate because I continue to earn money', said the singer, who last night secured his 59th top ten album with Something's Goin' On. 'But what about the Shadows or the families of Tommy Steele, Adam Faith or Lonnie Donegan? Many artists rely on one hit record as their sole source of income, but now they will earn nothing. I feel a responsibility to speak out for them'.

Sir Cliff, who is well known for his Christian beliefs, added: 'I am told that my recordings could even be used in pornographic films and there's not a thing I could do about it. I will have no control over how my music is used. I believe performers must be entitled to their dignity'.

The British Phonographic Industry and the International Federation of the Phonographic Industry is lobbying the European Commission for an extension of the copyright term. The bodies want the EU Term of Protection directive to be brought in line with the United States which has copyright on sound recordings to 95 years. Composers and writers in Britain continue to enjoy protection for 70 years after their death. Singers, such as Sir Cliff, who interpret other people's songs are at a particular disadvantage.

He has delivered his own submission to a review of EU copyright legislation initiated by Frits Bolkestein, the outgoing Internal Markets Commissioner. Introducing himself as 'an active and successful recording artist and performer' who has recorded 1,000 songs, he argues: 'Surely the creativity of the artists whose performances breathe life into the authors' works is worthy of recognition for at least the same period?'

The Elvis Presley industry, which was worth $21.8 million from Graceland admissions alone last year, will be the first to suffer. That's All Right and Blue Moon, his revolutionary 1954 recordings, are the first to enter the public domain, with Love Me Tender and Heartbreak Hotel to follow soon. Bill Haley's Rock Around The Clock and Shake, Rattle and Roll, are also available from January.

Those who believe that music should be 'free' argue that the 50-year rule allows public access to songs that record companies and artists have enjoyed ample opportunity to exploit. But the BPI said that new bands will miss out as record companies lose control over their back catalogue. A spokesman said: 'Labels rely on income from past hits to invest in new talent'.

Countdown

January 1, 2005
- Elvis Presley - That's All Right, Blue Moon, Blue Moon of Kentucky
- Bill Haley and his Comets - Shake, Rattle and Roll, Rock Around The Clock
- Ray Charles - I Got a Woman

2006
- Elvis Presley - Mystery Train, Baby Let's Play House, Trying To Get To You
- Chuck Berry - Maybellene
- Bo Diddley - Bo Diddley
- Fats Domino - Ain't That a Shame

2007
- Elvis - Heartbreak Hotel, Blue Suede Shoes, Love Me Tender
- Little Richard - Tutti Frutti
- Chuck Berry - Roll Over Beethoven
- James Brown - Please, Please, Please
- Carl Perkins - Blue Suede Shoes
- Johnny Cash - I Walk The Line
- Lonnie Donegan - Rock Island Line

2008
- Elvis - All Shook Up, Teddy Bear, Loving You, Jailhouse Rock, Don't
- Cliff Richard - Move It
- Buddy Holly - That'll Be The Day
- Everly Brothers - Bye Bye Love
- Jerry Lee Lewis - Whole Lotta Shakin'
- Sam Cooke - You Send Me

2009
- Elvis - Wear My Ring Around Your Neck, King Creole, One Night, A Fool Such As I, A Big hunk O Love
- Eddie Cochran - Summertime Blues
- Dion & The Belmonts - I Wonder Why
- Bobby Freeman - Do You Wanna Dance?

Protecting A Lifetime's Work

1492 William Caxton introduces the printing press into England

1557 Queen Mary I hands all printing and bookselling to one guild, the Stationer's Company

1709 Statute of Queen Anne is first copyright law in the world

1833 Dramatic Copyright Act gives limited performing rights protection in dramatic works

1842 Literary Copyright Act grants authors lifetime property rights in their work and protects stage plays if performed

1887 The Berne Convention for the Protection of Literary and Artistic Works gives first international protection for works including: novels, short stories, poems, plays, songs, operas, symphonies, musicals, drawings, paintings, sculptures and architectural works

1911 Parliament gives record companies protection on sound recordings for 50 years to reproduce work 'by means of mechanical contrivances, such as gramophone records and perforated piano rolls'

1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations gives Europe-wide protection against recorded music piracy

1988 Copyright, Designs and Patents Act harmonises UK with EU countries, but maintains 50-year sound recordings limit

1998 The Digital Millennium Copyright Act is enacted in the US to combat threat of Napster and internet pirates. Criticised for being immediately obsolete

The day the royalties die

By Anna Smyth (Scotsman News)

IT'S NEW YEAR'S Eve and the champagne is on ice. Sir Cliff's celebrity chums are nibbling on caviar and canapes, and Sue Barker is a little squiffy, but not as merry as Olivia Newton-John. A-list anticipation throngs the air as the stars await the company of their teen heart-throb.

All of a sudden the chatter dies down. The host is about to make an entrance, cutting a dash in a fine fuchsia suit. In walks the Bachelor Boy, to grateful applause. But he doesn't look happy. In fact, the cheery crooner is positively miserable. His face is tripping him and he can't muster a smile. The problem? No, it wasn't his Christmas number two. It's just that when the bells ring out at midnight, the first rock'n'rollers stand to lose a fortune.

On 1 January, 2005, a multitude of aging rockers may see their earnings plummet. For European Union law says we will all be able to use their music for nothing. Not, you understand, with a spot of breaking and entering. No, this is about copyright. From next year, recordings made on or before 31 December, 1954, will no longer be protected by UK copyright - which means hits from the rock'n'roll era will fall into the public domain and record companies, artists and performers will no longer have the right to earn an income from those performances.

The situation goes back to 1911, when parliament imposed a 50-year shelf-life on a singer's recordings. They provided that for the half century following a recording's release, the artist - or record company representing them - could charge royalties from anyone who used it: advertising jingles, compilation albums, you name it, if you borrowed the song, you pay the fee. The notoriously high price of many CDs is often attributable to these publishing costs.

Music svengalis such as the Simons Cowell and Fuller surely consider it a great idea. Copyright provides the economic foundation for creating and disseminating music (not to mention literature, art, films and software) and allows the rights holders to determine whether and how their works are copied and distributed. Essentially, it gives people a financial incentive to be creative and entrepreneurs a reason to invest in them. The latest available government estimates in Europe and the United States value copyright-based industries respectively at 360 billion ($250 billion) and $430 billion. And as we enter the electronic age, that value will only rocket.

When the EU addressed the copyright issue in 1988, it maintained the 50-year protection for performers. Rockers like Sir Cliff were unhappy, particularly given that recordings in the US are protected for 95 years. What's more, the families of British composers and writers can claim royalties for 70 years after their death, so it is only singers who truly miss out.

Now Sir Cliff is taking a stand. With the support of the British Phonographic Industry and the International Federation of the Phonographic Industry, he is lobbying the European Commission. Together they want the EU Term of Protection directive to be brought into line with the US provisions.

Andy Harris, an entertainment law specialist with Edinburgh firm Tods Murray, is doubtful that they will succeed. 'A lot of attention has been given to this so-called loophole recently', he says. 'But actually, it isn't really a loophole at all. Sound recording copyright was only ever meant to last for 50 years because that, it was thought, gave record companies a decent spell of profiting from their artists' music. The controversy has now arisen because we are approaching the time at which rock'n'roll music will become available, and the record executives can see that they will lose out'.

If the law remains unchanged, several major hits will become available. For example, original recordings of Elvis Presley's That's All Right and Blue Moon, will lose their protection, as well as Shake, Rattle and Roll by Bill Haley and the Comets. Over the next ten years, that collection will swell to include works by Chuck Berry, Fats Domino, James Brown and, of course, the Beatles.

BUT CONFUSION surrounds this debate because of the different forms of copyright that are created when a song - or any art form - is produced.

Firstly, the author of a song - the writer or composer - receives the composition copyright, so if anyone wants to use their lyrics and melody, they have to pay them royalties. This reaps the most significant reward, given that whenever anyone plays the song, or records a cover, the rights holder profits. This is the copyright protected for 70 years after the artist's death.

The second form of copyright stems from the actual sound recording of the original track, and it is only this copyright which is affected by the 50-year limit. More often that not, this copyright is assigned to the record company that produced the record on the basis that they provided the studio equipment. The artist will normally assign these rights to their publisher and record company respectively, and agree a percentage in their contract.

It is for this reason that some artists, despite enjoying enormous popularity, fail to make as great a fortune as their record company bosses. The Nineties pop band S Club 7 are a prime example: after four years at the top of the charts, each of the seven members left with an estimated fortune of just �600,000 each. Admittedly the sum was way above average earnings, but given the monstrous fortune amassed by their manager, Simon Fuller, in the same period - around �50 million - it came as something of a shock.

'Only when the artist has particular bargaining power - like, for example, Sir Cliff Richard - can they negotiate to hold on to their copyright, which is presumably why he is fighting this law. U2 have notoriously held on to all of their copyright, which was a very shrewd business move. But in a standard situation, that is not the way it works', says Harris.

For their part, the record companies claim they need the money. On a recent BBC Online forum, Peter Jamieson, chairman of the British Phonographic Industry, argued that British music relies on investment in new bands and that without royalties, that opportunity could be lost. 'The British record industry - which invests more in new British musical talent than any other - has less time to earn from its work than other UK creative industries', he says, referring to the lengthier copyright periods enjoyed in other European countries as well as America. 'Recording copyright suffers from unfair discrimination at the hands of copyright law.

'Artists like Razorlight, Keane and Franz Ferdinand, to name but a few, are now breaking through because UK record companies have signed them, invested in them and promoted them. This is only possible because the UK record industry is able to re-invest the proceeds from sales in new artists'.

You could argue that Jamieson has a vested interest in amending the law. Louis Barfe, author of Where Have All the Good Times Gone? The Rise and Fall of the Record Industry, certainly seems to think so. Writing on the same forum, he pulled few punches. 'If it isn't amended pretty soon, the earliest Elvis Presley sessions will be out of copyright, and by 2013, the Beatles' first LP will have gone the same way', he wrote. 'This is potentially disastrous for the record companies, which continue to milk these aging cash cows'.

SIR CLIFF hopes they will extend their copyright period, particularly because of his concerns over how his music will be used. A devout Christian, he has voiced fears that his songs, which date back to 1958, could be used for any purpose - even for pornographic films.

'If this law remains unchanged, it doesn't mean that I could go out and produce an album of Beatles songs because I would still breach the composition copyright, in that instance owed to Lennon and McCartney', explains Harris. 'It is an important difference. It may be that Sir Cliff Richard hasn't written his songs, in which case this will impact his control. The sound recording copyright may have been the only one he could hold on to, in which case he will now lose that power.

However, he adds: 'It doesn't mean that people can do whatever they want with the songs. If a pornographic director really wanted to use his songs, they would still need the approval of whoever wrote them'.

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