Copyright Term Extension in the EU – Sound Recordings

01 June 2009

Nick Boydell

This article was first published in the June 2009 edition of the World Intellectual Property Review.

Under the current EU Copyright Term Directive (2006/116/EC) (“the Directive”), the term of copyright for recorded performances is 50 years from the date of its publication or first communication to the public.  However, the music industry, which is facing a significant loss in revenues derived from recorded music from the 1960s, has been campaigning for an extension to this term, a proposal that has been met with a significant amount of resistance.

In response to this debate, the European Parliament recently approved a number of proposed amendments to the Directive following a proposal from the European Commission.  The most significant proposed amendment is the extension of the copyright term for music recordings from 50 years to 70 years.  The Commission had proposed an increase to 95 years but the Parliament settled on 70 years in what is seen as an attempt to appease those EU member states that are hostile to an extension and thus increase the likelihood of its approval by the EU Council of Ministers.

Such a term extension would benefit both producers and performers of music, and the proposed amendments attempt to balance the interests of both.  For example, if 50 years after first publication or communication to the public a producer has not offered a sound recording for sale in sufficient quantities, a performer is to be able to terminate a contract under which he has assigned his rights to a producer.  Furthermore, if the amendments are adopted, music producers are to be obliged to set aside at least 20% of the revenues derived from the term extension to finance a fund for session musicians.  The fund is to reward those musicians who would otherwise not benefit from the extension as they have given up the rights to the music that they perform in exchange for a flat fee.   Performers are also to have the right to renegotiate performance contracts entered into before the date of any new legislation containing the proposals.

In addition, the European Parliament has asked the Commission to conduct an assessment by January 2010 into whether a similar copyright term extension would benefit the audiovisual sector.