Radiohead's copyright assertions over Lana del Rey's song exemplify the economic oddities of this area of law

Ben Chu
Radiohead are asserting copyright over a song they themselves were sued over: Getty

​Private property rights, as Jeremy Corbyn’s critics often remind us, are the foundation stone of free markets. Mess about with them and the whole Jenga tower of our prosperity could come crashing down.

Yet how do we define “property”? The image that springs to mind when we hear that word is probably land. Give or take the occasional squabble over a boundary wall, we generally know where our little castles start and end (assuming we’re lucky enough to have one). A farmer, similarly, knows where the edges of her fields are. Under the law, no one, not even the state (except in extreme circumstances and in return for fair compensation), can expropriate our house, or our fields, or our businesses premises. What’s ours is ours.

But much property in a modern economy is intangible, and not as intuitively definable as land. If you own a business you have a right to the profits, after tax. If you have money in the bank, you have a right to receive the interest payments. That’s straightforward enough.

But what about “intellectual” property? What about the rights to the revenues from a popular new drug that a pharmaceutical company has invented, but which could be easily recreated by competitors? What about software? Algorithms? That’s where patent laws enter: time-limited protective monopolies granted by the state.

‘Creep’ – Prince at Coachella 2008 (uploaded via permission from Radiohead & NPG Music Publishing)

And for films and songs we have copyright law. It emerged this week that the band Radiohead are asserting their property rights over a piece of music. They feel that parts of a song by Lana Del Rey called “Get Free” “use musical elements” from their breakthrough 1993 hit, “Creep”.

Radiohead have denied Del Rey’s Twitter claim that they are suing her and that the band is demanding “100 per cent” of any publishing royalties from “Get Free. But it’s difficult to see why they have been in “discussions” with her since August unless money is at stake.

In a much-noted irony, Radiohead were themselves previously sued by two songwriters who claimed “Creep” breached their own property rights to 1972 hit “The Air That I Breathe” by The Hollies. Radiohead were forced to acknowledge a songwriting debt and split the royalties. Perhaps they feel it’s payback time.

Defenders of copyright law in music and film generally argue it’s necessary to encourage creative endeavour. To some extent that might be true (although the folk music tradition, which is largely based on the appropriation and incremental refinement of others’ material, seems to have thrived before the era of modern copyright laws).

But a crucial question is: how long should copyright last? How many years of exclusive property rights represent fair compensation for an artist or performer? When copyright laws were first established in Britain for books in the early 18th century the term was just 14 years.

When copyright was standardised internationally in the Berne Convention in 1886 this was extended to the remaining lifetime of the artist plus 50 years. The economic significance of that should be plain: an artist cannot benefit from royalties paid after their death. This effectively made these property rights hereditable.

And there have been further extensions in recent decades, driven not by artistic need but by corporate lobbying. Walt Disney in 1998 successfully lobbied the US Congress to extend its exclusive rights to Mickey Mouse, which were set to expire in 2003, by a further 20 years. There have been similar extensions of the copyright term, after intense corporate pressure by the music industry, in the European Union.

What is the economic value of these alterations of the law? The answer is a depressing one. There is no evidence that the benefits of copyrights of the current inordinate lengths outweigh the costs. Extensions of copyright terms and aggressive assertions of their breach in the cultural realm are not really about the preservation of wealth-generating property rights. They are about wealth extraction: the simple shifting of resources from one group to another. Hail to the thief indeed.

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