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September 2011

The Same Old Song: European Union Extends Copyright Protection for Performers and Sound Recordings

On September 12, 2011, the 27-nation European Union adopted a directive extending the term of protection for performers and sound recordings from 50 to 70 years after the date of performance. 

"The new directive intends to increase the level of protection of performers by acknowledging their creative and artistic contributions," the EU Council said in a statement announcing the change.  "Performers generally start their careers young and the current term of protection of 50 years often does not protect their performances for their entire lifetime.  Therefore, some performers face an income gap at the end of their lifetimes." 

The directive also narrows the gap between the term of copyright protection for authors (currently life plus 70 years after the author's death) and for performers (currently 50 years from the date of performance). 

"Today's agreement gives performers the recognition and reward they justly deserve for their creative contributions to society and stimulates creation for future generations of music fans," EU Commissioner Michael Barnier stated in a press release.

Without the extension, sound recordings from such legends as the Beatles, the Who, and ABBA would have fallen out of copyright in the near future.  The Council stressed, however, that the great majority of performers facing the loss of airplay royalties in the next decade are not famous rock singers, but anonymous session musicians who contributed to sound recordings in the late fifties and sixties and who rely on the royalties in their retirement.

Record producers will also benefit from term extension through additional revenue from the sale of sound recordings in shops and over the Internet.  The Council noted that the term extension "should allow producers to adapt to the rapidly changing business environment and help them maintain their investment levels in new talent." 

"The extension of protection for performers is more important today because of the explosion of the distribution of music on the Internet," commented Donald Woodard of Gordon & Rees's Intellectual Property and Sports, Media and Entertainment Law groups.  "Once copyright protection expires, performers can lose out on potential revenue from early performances sold on the Internet.  In addition, recording artists and performers, as opposed to songwriters, who enjoy longer terms of protection, have thought this gap in copyright protectionwas unfair because the recording artist/performer is much more identifiable with the commercial success of the actual sound recording.   Essentially, at least in theory, the extension enables performers and musicians to benefit during their lifetime from the continuing commercial use of their performances."

The directive includes provisions intended to benefit performers and give them more control over their work:

? Record companies must set up a session musicians' fund into which they pay 20% of revenues earned during the extended period

? Contracts between record producers and performers must contain a "use it or lose it" provision, which will allow performers to recoup their rights and market the recording themselves if the record producer does not do so

? A "clean slate" provision, which prohibits record producers from making deductions from royalties they pay to featured performers after the initial 50 years

As with all legislation regarding copyright, the decision was not without its opponents.  Eight countries objected to the directive, but must now accept the change.  Consumer groups and anti-copyright advocates also criticized the decision as a coup for "Big Music" just as several popular sound recordings would have entered the public domain. 

In the U.S., sound recordings are protected for 95 years under the Copyright Act.  Records produced or recorded in the EU are subject to this protection in the U.S.  Thus, even with term extension, a recording popular in the U.S. market would still lead to revenue streams for a longer period than a recording popular in the EU. 

All EU nations must incorporate the directive into national law within two years. 

Intellectual Property

Intellectual Property