Copyright Term Extension in Sound Recordings

In 2013 the government introduced legislation implementing EU Directive 2011/77/EU. The primary purpose of the directive was to increase the term of copyright, and related performers’ rights, in sound recordings, still in copyright at the date of implementation (1^st November 2013) from 50 to 70 years, thus providing an extra 20 years of income for performers and record labels from the exploitation of their qualifying recordings.

In addition to the extended copyright terms, several new provisions were introduced with the intention of benefitting performers, including a fund for session musicians, a “use-it-or-lose it” provision and a “clean slate” provision.

Performer Benefits

Extended rights period

A performer’s main sources of income from recordings on which they have performed are PPL income from the licensing of public performance and broadcast of those recordings, sales royalties and synchronisation licensing income for featured performers via their record contract, and synchronisation licensing income and other further and secondary use income from the MU for session musicians.

Prior to the new legislation the above income ceased 50 years after the first release or communication to the public of the recording. Once the legislation was introduced this provided an additional 20 years of sales, licensing and public performance and broadcast income for performers from each of the recordings on which they performed. By way of illustration, PPL reported that, in the initial three-year period since the introduction of the new legislation, they distributed £1.7m to performers on recordings which would otherwise have been out of copyright. This figure is set to increase annually, at least until 2034, as the number of recordings falling into the 20-year extension period increases.

Session Fund

The legislation introduced a provision that after the 50^th year following the publication of a sound recording the session musicians (musicians who transferred their rights to the producer of the sound recording for a single payment) are entitled to an equal share of 20% of gross revenues from physical and online sales of the recording. The legislation states that a musician cannot waive the right to this income.

In order to simplify the process, the legislation provided that in the UK, PPL would administer the “Session Fund”, annually collecting the 20% of gross revenues from each recording rights holder in relation to their recordings qualifying for this provision and distributing it to the relevant session musicians as held in their repertoire database. During the initial three years of operation PPL reported that it had distributed over £600k to musicians via the session fund. This figure is also set to increase annually as the number of recordings falling into the 20-year extension period increases.

Read more information about the Fund from PPL.

If you are a session musician who performed on recordings published between 50 and 70 years ago but have not received any payments from the Session Fund, you should contact PPL to ensure you are linked to the relevant recording(s).

If PPL has not received a contribution to the fund from the producer in relation to the relevant recording(s), the legislation provides that the musician may request in writing any relevant information in their possession. The producer must respond with the requested information within 90 days, and a musician may apply to the County Court (or the Sheriff in Scotland) if the producer does not comply within the timescale.

Use-It or Lose-It

If a sound recording, after the 50th anniversary of its first publication, is not being made available in sufficient quantity, both in physical format and online (i.e. to meet the demand from consumers) then, under the legislation, any musician who has transferred their reproduction, distribution and making available rights or their performer’s property rights in the recording to the producer may notify them in writing that they wish to reclaim their performers’ rights in the recording.

The producer then has one year from the date of the notification to rectify the issue by making the recording available to meet consumer demand. If they do not, their copyright in the sound recording will expire.

Once the producer’s copyright has expired, any other party (including the musician) is free to exploit the recording for the remainder of the extended copyright term, provided they have gained permission from all the other musicians on the recording (or their estates) and the owners of the music and lyrics.

To date there is no evidence that this right has been used in the UK. There are a number of practical issues which make its use difficult:

• If there is any commercial value in the recording it is likely the current producer is actually making it available in sufficient quantities, and therefore the right cannot be enforced.
• A performer may believe that the producer is not making it available in sufficient quantities, but it will be difficult to prove this unless the producer is not making it available at all.
• If a performer is successful in forcing expiration of the producer’s rights in the recording, and terminating their own contract, this does not automatically nullify the contracts of the other performers on the recording. They (or their estates, if they are deceased) would need to also each write to the producer terminating their respective contracts.  
• Once all contracts have been terminated, the parties will need to agree how the recording is to be exploited. This is likely to require contractual negotiations, with the publisher being in a very strong position. If any individual party decides not to give permission, the recording cannot be exploited.
• There are additional complications even if agreement is reached on exploitation and how any income generated will be split. PPL currently work on the basis that performers have an equitable remuneration right against the copyright owner, but the recording in question will have no copyright owner as those rights will have expired. The legislation states that in this case the performers will have a right against the music user instead. There is some confusion currently on how this will work in practice. This confusion will remain until the right is practically tested in the UK.

Clean Slate

After the 50th year following publication of a sound recording, the legislation provides that the producer must pay royalties from exploitation of the recording to all performers who are contractually entitled to them, without deduction regardless of any contractual clauses allowing them to do so.

This means the label is no longer entitled to offset any packaging deductions, marketing costs or advances against royalties payable in relation to the specific recording(s) in question. They still retain the ability to do so against any royalties due from exploitation of other sound recordings covered by the performers contract with them, that are yet to fall into the extended period of copyright.

If you signed a record contract and performed on recordings which were first published between 50 and 70 years ago, you should check any royalty statements you receive to ensure the label has applied the clean slate provision to all qualifying recordings. If you are not receiving regular royalty accounting from the label, you should contact them with the same question, as it could be that they have not applied the provision and your royalties in relation to the qualifying recordings are being used to offset an unrecouped royalty balance.