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Bulletin Printer friendly page EU enhances copyright protection for sound recordings and songs Date: 13/09/2011 After a delay of over two years since the European Parliament’s original approval, the EU Council of Ministers voted on 12 September 2011 to amend the Copyright Term Directive.1   The amending Directive has been eagerly anticipated by labels and artists alike, following their pleas to extend the life of sound recordings from the late ‘50s and early ‘60s, many of which have already fallen (or are otherwise due to fall) into the public domain. The amendments address two main areas: 1  Sound recordings and performers     Extension of term for sound recordings:  The copyright term for sound recordings will be extended from 50 years to 70 years.  The 70-year period will run from the date of first lawful publication or (if none) first lawful communication to the public (if the publication or, as the case may be, communication occurs within 50 years of the date of recording).  If neither occurs within 50 years of the date of recording, the term of copyright will expire at that point.  The extension will have prospective and retrospective effect.  For existing copyrights, however, it will only apply to sound recordings that are less than 50 years old as at the date falling two years after the date of force of the amending Directive.  In other words, no copyrights will be “revived” under the new law.     Performers’ rights:  The extension will apply equally to performers’ rights in their performances embodied in sound recordings, enabling them to continue to receive income from the performers’ collecting societies.     “Use it or lose it”:  During the extension period an artist will have the right to terminate the artist’s recording contract if, within one year of receiving notice of the artist’s intention to terminate, the record company fails to release the recording (by both physical and digital distribution).  Artists cannot waive this right of termination.  Upon termination, the record company’s rights in the sound recording will expire and fall into the public domain.  Artists’ rights in their performances will, however, continue for the extension period, allowing the artist to regain control of the performances and to release the performances themselves.        Fund for session musicians:  A dedicated fund will be set up for annual payouts to non-featured session musicians (i.e. those originally paid on a one-off, buy-out basis) and administered by the collecting societies that represent the interests of labels and performers (e.g. PPL in the UK or GVL in Germany).  Record companies will have to contribute to the fund by setting aside, at least once a year, at least 20% of their gross revenues generated during the extension period from the exploitation of records (but excluding the labels’ revenues deriving from equitable remuneration for communication to the public and rental rights or from fair compensation for private copying).  Session musicians cannot waive this right to additional remuneration.  Each member state may, in implementing the law at national level, exempt “micro enterprises” from contributions where it would not be cost-effective to collect and administer such revenues.     Recoupment in the extension period: There will be a “clean slate” in the extension period: record companies will not be able to recoup unrecouped balances under existing contracts with artists from royalties arising during the extension period.  In the case of royalty-based record contracts concluded before the proposed extension comes into force at national level, member states have the discretion (but are not obliged) to provide artists with a statutory right to renegotiate those contracts.  Such right would be exercisable 50 years after the recording’s first lawful publication (or, if none, first lawful communication to the public). 2 Musical compositions and lyrics     Term of copyright protection for musical compositions with lyrics:  This term of protection will (as long as the music and lyrics were specifically created for the relevant work) expire 70 years after the death of the last of the composer of the musical composition and the author of the lyrics (whether or not those persons are designated as co-authors).  Previously, the musical composition and the lyrics were treated as separate works for the purposes of calculating the duration of copyright protection, which had the effect that the musical composition might be in copyright but the lyrics not (or vice versa).  These provisions will apply to all musical compositions with words of which at least the music or the lyrics are protected in at least one Member State on the date falling two years after the entry into force of the amending Directive.  This will be without prejudice to any acts of exploitation performed before the entry into force of such Directive, and Member States will be obliged to adopt provisions that protect rights already acquired by third parties. Each EU member state now has two years to implement the new legislation into national law.  The implementation process is not likely to be quick.  Although it may be possible (as in the UK) for a government department to draw up secondary legislation to amend the relevant primary legislation without taking up too much parliamentary time, interested parties are likely to be consulted first on the details of the draft amending legislation. [1] Directive 2006/116/EC. If you would like to discuss how the changes to the Copyright Term Directive might affect your catalogue of recordings or songs, please contact Ed Baden-Powell or Jon Baker. Ed Baden-Powell 355 Simkins' early warning bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law. << back to articles & bulletins

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