The European Commission (the EC) has announced that it is opening a targeted consultation on the rights of performers and producers in the audio-visual sector (the Consultation). The Consultation will help inform the EC on whether there is a need to extend the duration of the protection of related rights of producers and performers in the audio-visual sector, as required under Article 3(2) of Directive 2011/77/EU (the Directive).

What is the aim of the Consultation?

At present, in the European Union, the Term Directive (2006/116/EC) requires member states to ensure that the protection of related rights of performers and producers (the Related Rights) in the audio-visual sector expires 50 years after the first communication to the public or the first publication of an audio-visual work.

Despite the Term Directive’s requirement that the term of protection of Related Rights in phonograms be extended from 50 years to 70 years after publication or communication to the public of the fixation of the work, the same extension was not required for Related Rights in audio-visual works. The requirement to extend the term of Related Rights in phonograms was made in the Term Directive alongside an extension of the length of copyright protection in music recordings from 50 to 70 years. That extension was introduced as it was thought performers often started their careers early and so the term of 50 years for fixations of performances did not protect their performances for the full extent of their lifetime.

At present under the Term Directive, unlike the stipulated 50 year period of protection of Related Rights in audio-visual works, copyright protection in audio-visual works themselves lasts for 70 years after the death of the last survivor among:

  • the principal director;
  • the author of the screenplay;
  • the author of the dialogue; and
  • the composer of the music specifically created for use in the film or audio-visual work.

It is worth noting that the UK already accords to producers this extended term.

In order for an extension of the protection of Related Rights in the audio-visual sector to become mandatory in member states, the EC has to assess the need for such extension under Article 3(2) of the Directive. The Consultation will therefore assist the EC in making this assessment.

What information will the Consultation seek to gather?

The aim of the Consultation is to gather information and data on:

  1. the current market practices of audio-visual rights holders; and
  2. the exercise of the rights by performers and producers in the audio-visual sector.

Who will the Consultation target?

The Consultation is largely aimed at gathering information from performers and producers as these are the holders of the Related Rights in the audio-visual sector. The EC is also targeting distributors, sales agents, broadcasters, online platforms and cultural heritage institutions given their contractual partnerships with the performers and producers in the audio-visual sector.

What happens after the Consultation is complete?

The EC will analyse the information gathered from the Consultation in order to prepare a report assessing the possible need for an extension of the term of protection of Related Rights in the audio-visual sector. This report will be submitted to the European Parliament, the Council, European Economic and Social Committee, and the Committee of the Regions.

Next steps

The Consultation is open until 30 September 2019. Parties involved in the management or exercise of rights in the audio-visual sector can contribute to the Consultation by completing the online questionnaire at ec.europa.eu.