Performers - who just can’t get no satisfaction?

Songwriters and composers are already guaranteed royalties on their recordings for life plus 70 years. To reflect this, EU Directive 2011/77//EU has extended the length of copyright term for sound recordings and performers’ rights in sound recordings from 50 years to 70 years as well as providing other, permanent, benefits to performers, namely a session fund for non-featured performers; a `use-it-or-lose-it` mechanism; and a `clean slate` provision. There is also a change to the expiry date of copyright in the words and music of a work where one is written specifically for the other (such as a song from a musical). The extended term applies to all sound recordings that are protected by copyright on 1 November 2013.

Who’s A Believer and who’s Lost that Lovin’ Feeling?

There was a controversial response to the directive before its adoption: some member states opposed its introduction and there has been a mixed reaction to in within the UK.

The drive for change from lobbyists within the UK, seemed largely to be about continuing to monetise the creativity and musical successes of the 1960s.  The legislation, on a European and national level, was supposed to recognise the difficult situation that professional musicians and other artists find themselves in when royalty payments die out in their lifetime. Many performers from the 1960s did not write their own songs and therefore would lose out when relying on only receiving royalties for the shorter 50 year term.

Now qualifying performers will continue to receive royalties for the extended term.  However, small time performers will not be the big winners as their recordings are probably not currently achieving significant sales. Most sales are achieved, and this does not just apply to most X Factor contestants, in the first couple of years of the recording’s release, so the amounts we are talking about here are actually quite small. The performer also rarely receives the lion’s share of any royalty because the producer is usually the first owner of the copyright in a sound recording. It is common practice for a performer to assign his performer`s rights to the producer in return for a single payment or for regular payments (such as royalties). A performer who receives regular payment may have been paid a sum in advance by the producer, which is repaid over the period of the contract.

The “use it or lose it” clauses, which will now have to be included in contracts linking performers to their record companies, will allow performers to get their rights back if the record producer does not market the sound recording during the extended period.  This gives the performer the option of finding another record producer willing to sell his music or to perhaps self publish and sell via the internet, supposedly an increasingly attractive option for smaller players. But the directive (only) gives ‘mechanisms’ to get back their rights and there’s a real sense that the majority of the now elderly small time performers will not have the appetite to go through the proposed process in order to take control of their works.  It also remains to be seen how  effective, in practice, the ‘clean slate’ provisions will be and how successful session fund applicants will be (given that their fall-back position is to apply to the county court if the producer does not comply within the stated time limit).

The winners in the extension of the term for sound recordings are the big record labels, collecting societies, prominent singers like Cliff Richards and bands like the Rolling Stones (who have much greater bargaining power).  These have access to valuable back catalogues that will be able to keep alive revenue streams that would have been on the verge of dying out.

Businesses, broadcasting organisations and consumers will lose out too, particularly those run on a small or local level: many classics were about to enter the public domain but now they will have to be paid for, for another twenty years. Any planned revival of these classics will need to be postponed for a considerable period of time.

What should lawyers do (instead of Sittin' On The Dock Of The Bay)?

Check eligibility of your clients’ sound recordings to see whether the extension applies. Recordings made or released in the early 1960s are unlikely to benefit from the new provisions.  The Regulations do not bring back into copyright those sound recordings where copyright has expired:  the extension of the term of protection applies only to those sound recordings that were in copyright on 1 November 2013 and to any sound recordings made after that date.

As is usual with such changes there is little detail to hand as to how mechanisms will work or what might become keys areas for litigation. Lawyers should keep a close eye on the Intellectual Property Enterprise Court and the Copyright Tribunal for cases providing further guidance.  (Lexis®PSL IP & IT subscribers can see what's coming up in our Horizon scanning feature.) Lawyers should also be alive to other changes afoot relating to orphan works, (extended) collective licensing, digital copyright exchanges and the Copyright Hub as these are likely to impact on this area.

Area of Interest