Under an EU Directive from 2011, the duration of copyright in sound recordings and associated performers’ rights was, in most cases, extended. The directive was implemented in the UK with effect from 1 November 2013 by the Copyright and Duration of Rights in Performances Regulations 2013.
If a recording is released within 50 years of being made, the copyright term is extended from 50 to 70 years from release as are the associated performers’ rights.
The regulations also provide that:
- If, by the end of the initial 50 year period, a record label has not released a track in sufficient quantities to meet demand or made it available online (or, having done so, does not, after the end of the initial 50 year period, re-release in sufficient quantities or make it available), the performer(s) can require the label to exploit it. If the label does not do this, the copyright term in that track is terminated. The label therefore loses its rights in the track, but the performer has a new right to require subsequent users of the track to pay the performer when it is played in public or communicated to the public during the next 20 years - the “use it or lose it” provision.
- After the end of the initial 50 year period labels must set aside 20% of all “gross revenues” from physical and online sales of the relevant tracks for session musicians and pay this to the collection society, PPL, annually for distribution - the “session fund”.
- A label cannot recover (or recoup) advance payments, recording and other costs against royalties earned after the initial 50 year period - the “clean slate” provision.
- The extension of the copyright term does not apply to any recordings that were not in copyright on 1 November 2013. The regulations do not bring back into copyright those recordings in which copyright has expired. Any recordings released prior to 1 January 1963 remain out of copyright and the performers cannot claim any performance income for those recordings. These include most of 1950s and early 1960s jazz, blues, rock and roll and rockabilly genres, the first Bob Dylan album, “Love Me Do” by the Beatles, “Shakin’ All Over” by Jonny Kidd and the Pirates and other classics. We may see more releases of previously unreleased tracks from labels to ensure the tracks get the extra 20 years.
While the extension is to be applauded in general from the performers’ and record companies’ perspective, the regulations may be difficult to interpret in practice. Some people may find it surprising that session musicians will effectively receive record royalties from the session fund when the custom previously was that they would receive a one-off fee and a share of performance income. In the case of older recordings in particular, they could end up receiving more than the main contracted performer.
The regulations have also changed the law about songs and lyrics where the songwriter and lyricist collaborated. More about this to follow.