Following a consultation of interested parties, the European Commission has published proposals to extend the term of copyright protection for sound recordings and improve protection provided to performers and session musicians. In addition to proposing an extension of the term of copyright protection for sound recordings from 50 to 95 years, the proposals seek to introduce a uniform method for calculating the term of copyright protection for co-authored musical compositions, and sets out plans to provide session musicians with rights to yearly payments from a dedicated fund. The proposals will be welcomed by performers and the recording industry, especially performers whose recordings continue to generate revenue for many years who currently lose protection for sound recordings after half a century. The UK Intellectual Property Office (the UK-IPO) has already voiced concern about the proposals and is canvassing opinion from all those who may be affected.
Money for old rope
Under the Directive on the harmonisation of the term of copyright protection (2006/116/EC, “the Directive”) sound recordings currently benefit from a 50-year term of protection. This period is less than the 95-year term for equivalent works available in the United States and has been criticised by musicians who wish to retain exclusive rights to exploit their music throughout their lifetimes. The Gowers review of intellectual property law, published in December 2006 (click here for our review) considered such an extension unnecessary, and as a result, the UK may oppose the new proposals.
The European Commission’s proposal would amend the Directive to extend copyright protection in sound recordings for performers and producers to 95 years from first publication/communication to the public. Transitional provisions would ensure that performers benefiting under contracts with record producers continue to benefit during any extended term of copyright protection. Under such provisions record producers would be obliged to set aside 20% of revenues relating to recordings which, but for the extension of the term of copyright protection, would be in the public domain, to be held for the benefit of performers who have transferred their rights to the producer in return for a one-off payment.
Use it or lose it
It is proposed that during the extended period, rights in the sound recording should revert back to the performer if the producer does not take sufficient steps to market and sell the recording. If this should happen the producer would no longer have any rights in the recording. This would avoid a situation whereby both the producer and performer have simultaneous rights to market the same recording. It is unclear at this stage what steps a producer will have to take to demonstrate that it has made sufficient copies of the recording available to the public.
In addition to copyright protection for sound recordings, copyright protection is available for musical works themselves. The Commission’s proposals also seek to harmonise the law relating to the term of copyright protection for co-written musical compositions containing music and lyrics. In some Member States musical compositions with words benefit from a single term of protection calculated from the death of the last surviving author, while in other Member States (such as in the UK) separate terms of protection apply for the musical and lyrical works. The situation is complicated further as many musical works are co-authored or created through collaboration. The Commission argues that such inconsistencies impede the free movement of goods and services. It is proposed that the Directive be amended so that the term of protection of a co-written musical composition with words shall expire 70 years after the death of the last of the author of the lyrics or the composer of the music.
Harmonisation is to be welcomed, as companies seek to market music across jurisdictions. However in the UK copyright subsists separately in both lyrics (as a literary work) and the music (as a musical work). The proposed changes suggest that in future a musical work including lyrics may be treated as being protected by only a single piece of copyright.
This would have significant effects on rights holders’ ability to sue others for infringement of copyright in the UK. For example to prove copying, a ‘substantial part’ of the original work must be copied. It may become harder to prove infringement if in future the lyrics of a song are considered to gain protection only as part of a musical composition. It remains to be seen if this is exactly what the Commission intended, and if so whether it could be avoided by simply recording lyrics in writing prior to their incorporation into a musical work.
Mind the income gap
The report that accompanies the Commission’s proposals focuses heavily on the plight of recording artists, session musicians and record companies, in an industry that is suffering from the ease by which consumers can access illegal downloads.
The proposals are, however, at odds with the findings of the Gowers Review of Intellectual Property, which suggested that increasing the copyright term for sound recordings beyond 50 years would not provide additional incentives to invest, as monies earned so far in the future fail to impact on current spending decisions. The Commission noted this objection but said that such an analysis ignored performers’ moral rights. A key target of the proposals is to bridge the ‘income gap’ at the end of a performer’s life, when under the current law a performer’s works over 50 years old are no longer protected.
No thank you, we’re British
The UK-IPO has reacted swiftly to the proposals, with a press release suggesting that extending the term of protection for sound recordings would negatively impact upon consumers and industry. The UK-IPO also requests that all those who may be affected air their views to it. The press release quotes the Minister of Intellectual Property, Baroness Delyth Morgan:
“Because copyright represents a monopoly we need to be very clear that the circumstances justify an extension. We will therefore need to consider these proposals carefully to understand how they would work and what the benefits are likely to be. I would like to hear what the public thinks about this and would urge all those who have an interest in these proposals to make sure their voice is heard and to contact the UK-IPO by the end of August.”
Extended protection will provide performers and producers with greater protection for older works. As fifty years is already a considerable length of time to enjoy a monopoly, it is arguable whether the proposals outline a fairer position for all concerned than the status quo. While it may provide the prospect of greater revenues in relation to classic hits that have stood the test of time, it does not address the larger challenge facing the profitability of the industry; namely how to prevent wide-scale breach of copyright by file sharers.