As a result of an EC Directive adopted on 12 September 2011 ageing popsters such as Sir Cliff Richard are to benefit from an extension of the copyright in sound recordings from the current period of 50 years to 70 years from the date of the first publication of their records.

Whilst Sir Cliff and other performers will of course benefit from this extension, the real beneficiaries will be the record companies which produced the recordings (or more likely, bearing in mind the consolidation in the industry, the record companies which now own the copyright in the sound recordings). This is because the revenue from continuing sales of the recordings will, of course, primarily benefit those record companies, with a small share of that revenue being paid by way of royalties to the likes of Sir Cliff under their original recording contracts.

Session musicians

But that is not the whole story. The Directive also provides some benefit for session musicians who played on the recordings in question if they were only paid a one-off fee. After the first 50 year term of copyright in a sound recording, the record company (presumably the company currently entitled to the copyright) will be required to set aside 20% of the revenue received by it from the exploitation of the recording (subject to certain exceptions) for payment to these session musicians. It will be interesting to see how in practice this revenue is shared amongst the session musicians in question - a headache no doubt for the collecting societies who will be charged with administering this right.

It is not clear from the Directive whether this obligation to account to session musicians expires after the 70 year term of copyright in the sound recording or whether any further revenue which may be earned by the record company (eg by continuing to sell CDs to purchasers who want an original rather than a copy burnt by a friend) has to be accounted for in the same way.

"Use it or lose it"

Another interesting feature of the Directive is a "use it or lose it" provision. This is a right for performers to demand the return of the copyright in the sound recording if the record company which owns the copyright does not make sufficient quantities of the recording (presumably on either vinyl, CD or some other format) available for sale, or refrains from making copies "available to the public, by wire or wireless means, in such a way that members of the public may access it from a place and at a time individually chosen by them" (eg on iTunes). If this situation has arisen at any time after the initial 50 year term of copyright, the performer may give notice to the record company that it wishes to take back the copyright in the sound recording. If the company does not carry out each of those acts of exploitation within a period of one year, the copyright will revert to the performer.

It will be interesting to see how this reversion of copyright will operate where the sound recording relates to a group of performers (especially where it features, for example, a popular beat combo plus a number of session musicians) - there are bound to be disputes over how the copyright is to be owned and who is entitled to what share of any revenue arising from any subsequent exploitation.

Clean slate

If the contract between a performer and his record label included provisions for advances paid to the performer which were recoupable against royalties, or contained other provisions for deductions from royalties earned, those deductions will no longer apply after the first 50 year period of copyright, even in the (perhaps unlikely) situation where the advances have not been recouped.

Harmonisation of term of copyright in lyrics and music

In addition to extending the term of copyright in the sound recording of a performance, the Directive also ensures that the term of copyright in the underlying words and music of a song are protected across the EU for a period of 70 years from the date of the death of the last surviving member of the songwriting team, provided that both the lyrics and the music were specifically created for the song in question.

Implementation in the UK

The Directive will need to be implemented in the UK within two years from the date that it is published in the Official Journal. Bearing in mind the Coalition Government's "one in, one out" regime and its stated goal of simply transposing EC Directives into national law with the minimum of amendments, it will be fascinating to see how the provisions of the Directive are implemented, and how the many areas of uncertainty in the Directive are dealt with, if at all.

Congratulations in advance to the draftsman who manages to produce some clear and concise legislation which correctly implements the Directive.