On 12 September 2011, Directive 2011 / 77 / EU, amending Directive 2006 / 116 / EC on the term of protection of copyright and certain related rights (the Directive) was adopted. The Directive extends the term of copyright protection for performers and sound recordings from 50 to 70 years.
The Directive, which is often referred to as “Cliff’s Law”, after the singer Cliff Richard, who campaigned for the extension of the period of protection, is intended to enable performers to earn money for a longer period of time. Sir Cliff’s music, for example, started losing protection in 2008, hence his strong backing of the amendment to the existing legislation. The Directive will bring protection more in line with that afforded to authors, which extends to 70 years after their death.
The reasoning behind extending this period of protection is set out in Recital 5 of the Directive: “Performers generally start their careers young and the current term of protection of 50 years applicable to fixations of performances often does not protect their performances for their entire lifetime.” Although the extra income is unlikely to be important for singers such as Sir Cliff, it will be important for other singers, who do not have a regular salaried income late in their career. The European Commission stated that if the present term of 50 years was not changed, some 7,000 UK performers would lose their airplay royalties in the next 10 years. Record producers will also benefit from the amendments to the legislation as they will receive additional revenue from the sales of records in shops and online.
To deal with concerns that the extension would only benefit music producers, the Directive contains a set of accompanying measures designed to ensure that performers who have assigned their rights to record producers will get additional revenue from the extension. First, there will be a 20 per cent “session musicians fund”, paid by the record producer. This 20 per cent will correspond to the revenue derived by the record producer from the recording during the extended period, before deducting costs. The fund will apply to all recordings that benefit from the term extension and will ensure that performers who have transferred or assigned their exclusive rights for a one-off flat fee obtain additional payments during the extended term, these costs being paid at least once a year.
Second, the Directive contains a “use it or lose it” clause, which means the record producer will have to cede control over its copyright to performers if it does not market the sound recording containing the performance, or make sufficient quantities of it available to the public during the extended 20 year period. If a record producer does not market a recording despite a request from the performer, the performer will get their rights back, thus terminating the assignment, and enabling the performer to market the recording himself, or sell the recording to another record company willing to market it. The record producer would, in this case, lose his copyright in the recording.
Third, the Directive has a “clean slate” provision that prevents any deductions being made (whether or not these have been contractually provided for) from the contractual royalties owed to featured performers during the extended term. This again applies to those performers who assigned their exclusive rights to the record producer in return for royalties or remuneration.
The Directive harmonises the method of calculating the term of protection of songs and other musical compositions with words created by several authors. The term of protection will expire 70 years after the death of the last surviving member of the song writing team: either the author of the lyrics or the composer of the music, provided that both contributions were specifically created for the work in question.
The Member States will be required to implement the Directive within two years from the date of its entry into force.