Legal Update

Intellectual Property – Media Law – Entertainment lawyers - Copyright – Duration of Copyright – Sound Recording – Performances

The Council of the European Union, specifically the General Affairs Council, has adopted a Directive extending the term of copyright protection for performers and sound recordings from 50 to 70 years.

The previous terms were embodied in Article 3 of The Copyright Term Directive (Directive 2006/116/EC).

This change has been in the pipeline for some time with the European Commission publishing a proposal to extend the term of protection from sound recordings from 50 years to 95 years (like the US term of protection) in July 2008. One of the proposals was that the term of protection of a musical composition expire 70 years after the death of the last surviving author, be it the author of the lyrics or the composer of the music.

Previously, the UK government rejected an extension of copyright protection for sound recordings and both the Gowers Review on Intellectual Property and the Hargreaves report concluded there was no economic case to support an extension and a lack of evidential support for the proposal, respectively. Furthermore, many believe the new Directive will not help lesser-known artists because any extra income would be highly skewed towards the small number of very successful artists whose work continues to sell more than 50 years after it was recorded.

Despite the above arguments, the Directive is supported by performers, notably Sir Cliff Richards, record companies and more crucially, now has UK backing. 

What are the changes?

Below are some of the key terms the new Directive seeks to address.

• Term of protection – the copyright term for sound recordings and fixations of performances in sound recordings is extended to 70 years from the date of communication to the public or publication.
• Session musicians – Record companies have to pay 20% of the revenues earned during the extended period into a fund intended to benefit session musicians who received one-off non-recurring payments for their performances.
• Reversion of rights – Rights in a recording are to revert to the performer if the record company were to stop marketing the recording during the extended term of protection.
• Co-written musical works – The way of calculating the term of protection for co-written musical works has been brought into line and is now 70 years after the death of the last surviving author of the lyrics or the composer of the music.
• “Clean slate” provision – Record producers are not allowed to use previous contractual agreements with performers to deduct money from any additional royalties arising during the extended period.

Member states have two years to implement the new legislation.

Rosanna Cooper is the principal of RT Coopers and specialises in intellectual property law in the media sector. Dr Cooper may be contacted on 020 7488 9947 or by e-mail: [email protected]. 

If you require further information contact us at [email protected].

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© RT COOPERS, 2011. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.