At present, there are discrepancies in the term of protection enjoyed across Member States in relation to musical compositions with words. In some Member States, musical compositions with words are given a single unified term of protection calculated from the date of the death of the last surviving author. In other States (including the UK) separate terms of protection apply to the musical work and the literary work (lyrics) calculated from the date of death of the author or last surviving author of each independent musical or literary work. The affect of this is that copyright in the lyrics and in the music can expire at different times in different States and even within a state. This lack of harmonisation across the EU inhibits the free movement of goods and services as copyright may have expired in a musical work (or literary work) in one EU State but still exist in another State.
The Commission proposes inserting into Directive 2006/116/EC on the term of protection of copyright and related rights (“the Directive”), a new Article 1(7) providing that for the purpose of calculating the copyright term only, a musical composition with words will be treated as if it was a work co-authored by the author/s of the music and the author/s of the lyrics. This will mean that copyright in the musical work and literary work (lyrics) expires at the same time, being the end of the year 70 years after the death of the last surviving author.
Currently, the term of copyright protection for performers and phonogram producers set out in the Directive is 50 years after publication or first communication to the public of the phonogram. “Phonogram” is an archaic term which was originally used to refer to records. However, the Phonograms Convention, a treaty administered by the World Intellectual Property Organization defines a phonogram as “any exclusively aural fixation of sounds of a performance or of other sounds”. It is accordingly used to refer broadly to any sound recording. The Commission’s proposal is to extend the term of protection to 95 years (in relation to both the recording and the performance embodied therein) following the triggering event. This extended period is only to apply to fixations of performances in phonograms. Therefore, for fixations of performances otherwise than in a phonogram (for example, in an audiovisual work) the current 50 year term will continue to apply.
The proposed amending Directive includes in its recitals an explanatory note that performers start their careers at a young age and the current term of 50 years is often insufficient to protect their performance for their lifetimes, let alone beyond them. Therefore, performers face an income gap at the end of their lifetimes and also cannot prevent or restrict objectionable uses of their performances that occur during their lifetimes. According to the Commission, an extension to 95 years would help to address these problems. It would also benefit phonogram producers by generating additional revenue from the sale of phonograms. The proposal relating to the extension of term for phonogram producers and performers is timely as copyright in recordings released 50 years ago (when production of phonograms first reached large scale production) is now starting to expire. This means that, unless the law changes, phonogram producers and performers will not continue to enjoy a revenue stream from their phonograms or performances.
In practice, session musicians have little or no bargaining power and usually transfer their rights to the phonogram producer on the basis of a one-off buy out payment. Feature performers (who usually receive a credit) are better remunerated. They usually receive an advance on royalties and then further payments if the phonogram producer recoups the initial advance. The Commission proposes that phonogram producers should contribute 20% of revenues generated by phonogram sales during the extended copyright term to a dedicated fund for session musicians, which collecting societies would then administer. The money set aside in the fund is to be reserved exclusively for the benefit of performers whose performances have been fixed in a phonogram and who have transferred their rights to the phonogram producer against a one-off payment before the date of transposition of the amending Directive (its incorporation into national law). This is intended to compensate these performers (session musicians) for the fact that the phonogram producers will receive an additional 45 years in which to exploit their performance embedded in phonograms, before copyright expires. For performances fixed in phonograms which have not come into existence or which are in existence but which have not been transferred to a phonogram producer at the time of transposition, the session musicians will not benefit from the fund but are intended instead to benefit from an increased buy-out payment negotiated on the basis of the longer term of copyright protection which the phonogram producer will enjoy.
In order to avoid placing an undue burden on small and medium sized phonogram producers, Member States shall be free to exempt certain producers which do not achieve annual revenue of at least €2 million from contributing to the fund.
The Commission’s proposal includes a new Article 10a(6) which provides that if a phonogram producer does not publish a phonogram, which but for the term extension would be in the public domain, the rights in the fixation of the performance shall, upon request, revert to the performer and the rights in the phonogram shall expire. This would leave the performer (or his or her estate) free to exploit the phonogram embodying their performance without taking a licence from the phonogram producer. However, licences in relation to the underlying musical and literary works would need to be obtained if they were still protected by copyright. This is also a transitional provision only and is therefore of limited benefit to performers.
If neither the phonogram producer nor the performer makes the phonogram available to the public in a reasonable quantity during the first year of the term extension, the rights in the phonogram and in the fixation of the performance shall expire and the rights shall enter the public domain. Again, anyone wishing to exploit the phonogram or the performance embodied therein would still need a licence in relation to the underlying works, if they were still protected by copyright.
The Gowers Review (published in December 2006) supported the status quo and advised against any extension of copyright term. The UK Government has also put forward reasons to reject the Commission’s proposal. For example, that the extension would not benefit the majority of performers and would lead to increased costs for industries that pay to play music. The proposal is currently under consideration by the European Parliament.