The Cliff Richard Directive

30-Nov-2011

There has been a long fought campaign over many years to extend the copyright protection of sound recordings (namely, master recordings). Recently, the European Council voted to increase the period of protection from 50 to 70 years. The change has been welcomed by many in the industry, including the record companies who own the sound recordings.

 

While the recordings are protected under the copyright act, the artist is entitled to a royalty from the exploitation of the recordings. After expiry of the protection period, the recordings pass into the public domain, so the artist will not be entitled to receive any royalties. Many household names from the fifties and sixties will breathe a sign of relief, the Rolling Stones, the Beatles, Shirley Bassey, Cliff Richard and many more. Some recordings have already fallen into the public domain.

 

Sound recordings are protected from being exploited under the copyright act for a period of 50 years from the end of the calendar year it was created, but now the period of protection has been extended to 70 years.

 

The copyright owner is usually the record company, but the EU has now changed the rules by introducing the principle of “use it or lose it”. Which means that if the record company does not market and promote the record after a request from the artist, thereafter the artist gets all their rights returned to them, and can market the recording themselves or take it to another company who will market the recordings on their behalf.

 

The EU have also brought in a new rule to say that where musicians have sold their rights for a on-off flat fee, they will obtain a share of payments gained from the additional 20 year term.

 

Record companies will be prevented from deducting any further development costs from royalties collected during the additional 20 year term. Record companies are notorious for deducting all manner of charges (such as the ‘new media’ charge and ‘packaging deductions’). So, a ‘clean slate’ provision has been brought in, to prevent such deductions taking place. Also the practice of ‘withholding’ royalty payments and the ‘recoupment’ of advances will not be permitted in the additional term.

 

The Directive is aimed at musicians who are not millionaires. Namely, those musicians who rely on the steady royalty payments they receive. The numbers of performers in the UK that are likely to be affected are approximately 7,000, who would otherwise lose their airplay royalties. The extension also brings certain countries in line with other international jurisdictions, except the USA whose sound recording protection period is for 95 years.

 

Unfortunately it may take approximately a further 2 years to implement the harmonisation of the extension period by the national parliaments of the EU Members. In a nutshell, the Directive provides that Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 November 2013.

 

For more information on entertainment law contact Rudi Kidd.

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