On March 11th 2014, the Legislative Decree February 21st 2014 n. 22, implementing the directive 2011/77/EU of the European Parliament and of the Council, amending the directive 2006/11/EC on the term of protection of copyright and certain related rights, has been published in the Italian Official Gazette.
First of all, this provision has amended the art. 75 of Italian Copyright law n. 633/1941 (hereinafter, "Lda"), extending to seventy years the term of protection of the phonogram producer’s rights on musical works’ recordings. According to art. 1 of the above-mentioned decree, the period of seventy years shall begin:
- from the date of the first lawful publication, if, in the previous fifty years, the phonogram was lawfully published;
- from the date of the first communication to the public, if, in the previous fifty years, the phonogram has not been lawfully published, but it has been lawfully communicated to the public.
The decree in question has also changed the art. 85 Lda, raising to seventy years the duration of the performers’ rights only for fixations of performances fixed on phonograms.
Furthermore, the abovementioned disposition has introduced two new articles:
- the art.84 bis Lda, which provides an additional compensation for performers, if the contract on transfer or assignment gives them a right to claim a non-recurring remuneration. This compensation has to be paid by the phonogram producer for each full year immediately following the 50th year and shall correspond to 20 % (net of expenses) of the revenue which the phonogram producer has derived, during the year preceding in which the said remuneration is paid, from the reproduction, distribution and making available of the phonogram in question, following the 50th year after it was lawfully published or lawfully communicated to the public.
- the art. 84 ter Lda, which introduces the performers’ faculty to terminate the contract signed with the phonogram producer, if the latter, after 50 years from the lawfully publishing or from the lawfully communication to the public, does not offer copies of the phonogram for sale in sufficient quantity or does not make it available to the public (clause “use it or lose it”). The right to terminate the contract may be exercised if the producer, within a year of the notification by the performer of his intention to terminate the contract, fails to carry out both of the acts of exploitation referred to in that sentence.
Furthermore, the decree in question provides that where the performer is entitled to receive recurring payments, such payments shall not be deducted from any payment in advance, nor any deduction provided in the contract after the fiftieth year.
These rules which have been modified or introduced by the decree in question will be applied only for those fixations of performances and phonograms which are protected according to law on November 1st, 2013.