Under current EU law, recorded musical performances are protected for a maximum of 50 years after their fixation in a record. Such copyright protection signifies that over the protected period, performers are paid each time their work is played on the air and in public places, such as bars and discotheques. After the expiry of such period, performers are no longer entitled to receive any contribution from their performances, as they would fall into the public domain.
The 50-year protection in the EU jarred greatly with the US copyright term of 95 years- Josette Grech
After years of campaigning, a directive to extend the term of protection for performers and sound recordings from 50 to 70 years was passed recently by the Council of the EU. The directive, often referred to as ‘Cliff’s law’ after Sir Cliff Richards whose music started losing protection in 2008, owes its inception to Sir Richards who strongly backed the idea for an amendment to existing legislation.
Various justifications were put forward to bolster the argument in favour of an extension of copyright protection. The main proponents, performers and record companies, argued against the disparity between the 50-years-from-release sound recording term and that enjoyed by songwriters, composers and their publishers, which lasts throughout their life and 70 years after their death. Besides, the 50-year protection in the EU jarred greatly with the US copyright term of 95 years.
Furthermore, an empirical study on average life expectancy that was conducted in connection with debuts of performers also supported the extension of copyright protection. Indeed, most performers start their career in their early 20s, some even before. Average life expectancy in the European Union having increased significantly over the years led to a situation where performers, who start their career early on and live to be octogenarians, would not be able to enjoy the benefits of their creation in full because the term of protection would have come to an end.
The extension of the term of protection for performers adopted at EU level will ensure an income practically throughout their lifetime. To benefit from the extended term are also record producers who will generate additional revenue from the sale of protected records. In addition to the extended term, the directive contains accompanying measures which aim specifically to ensure that performers who have assigned their rights to record producers will get additional revenue from the extension.
Record companies will be required to set up a fund for session musicians into which 20 per cent of their revenues earned during the extended term is paid. This will ensure that performers who have assigned their exclusive rights against a one-time fee obtain additional payments during the extended term.
Another interesting measure is that of the “use it or lose it” clause which will now have to be included in contracts between performers and record companies. This clause will oblige labels to ensure that sound recordings containing the performance, however old, are available for public purchase. Performers will be entitled to get their rights back if record companies fail to market the recording despite the performers’ request or fail to generate sufficient quantities to the public. In such eventuality, performers would be entitled to market the recording themselves or find another record producer willing to sell their music.
The directive also includes a “clean slate” provision that prevents any deductions being made by producers from the contractual royalties due to featured performers during the extended term. This new provision again applies to those performers who assigned their exclusive rights to the record producer in return for royalties or remuneration. Member states will be required to implement the directive within two years from the date of its entry into force.
jgrech@demarcoassociates.com
Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.