Performers and the 20% Fund: it's all gone a bit quiet

"Musicians benefit from extended copyright term for sound recordings" was the grand and exciting title of a media release by the UK government's Department for Business, Innovation and Skills and the Intellectual Property Office back in 2013 which read as follows:

Recorded performers will benefit from an extended length of copyright term for sound recordings and performers rights in sound recordings 

New rules introduced today (1 November 2013) will see recorded performers and musicians benefit from an extended length of copyright term for sound recordings and performers’ rights in sound recordings - increasing from 50 to 70 years.

The Copyright and Duration of Rights in Performances Regulations 2013 implement EU directive 2011/77/EU into UK law. Recorded performers and musicians will also benefit, after 50 years following publication of the sound recording, from some additional novel and innovative measures including:

• a ‘session fund’ paying many performers (such as session musicians) 20% of revenues from sales of their recordings [the '20% Fund']
• a ‘clean slate’ provision, whereby a producer may not make deductions from payments to performers (such as advances of royalties) from publication of a recording
• a ‘use it or lose it’ clause - which allows performers and musicians to claim back their performance rights in sound recordings if they are not being commercially exploited

The Minister for Intellectual Property, Lord Younger, said:

The new rules bring lasting benefits for our world class recording artists. These changes demonstrate the government’s ongoing commitment to, and support for, our creative industries - who are worth billions to our economy.

Artists who performed on sound recordings will benefit from this extension of copyright protection from 50 to 70 years. The changes should help ensure that musicians are rewarded for their creativity and hard work throughout their careers.

Jo Dipple, Chief Executive, UK Music said:

UK Music welcomes today’s announcement on extending the term of copyright for sound recordings. We are pleased that the government is implementing changes that acknowledge the importance of copyright to performers and record companies. This change will mean creators can rightfully continue to make a living from their intellectual property and works.

The directive also harmonises the length of copyright term for co-written works. The directive was approved by EU member states in September 2011 and the UK government has implemented the directive on time.

This blog has received an email from a concerned reader -- indeed a performer -- who reminds him that the task of administering UK performers' revenue arising from the copyright term extensions lies with the PPL (motto: "Standing Up For Music Rights") and that the first due date for the payment of monies by copyright owners to PPL for distribution to the Fund's beneficiaries --30 June 2015 -- has now passed. But there seem to be no details as to how the 20% Fund is to be administered and how monies are presumably to be collected from elsewhere in the European Union. PPL's own FAQs on copyright term extension don't run to that level of detail.

Musicians -- and particularly those who are not spring chickens -- are hoping to learn a bit more about the 20% Fund actually works. After all, where the performer of a work was 50 years old when the recording was made, his extra income will kick in when he is 100 years old. It might be helpful for him, though, if he could do his estate planning while he was still alive ...

The long and the short of it is that, if information is not available, it should be -- and if it is available, it isn't percolating through to musicians and other performers. If any readers can shed light on the situation, this blog and some of its elder and more venerable readers will be thrilled.

Additionally, non-UK readers may be able to share with us their own experiences as to how funds are collected and distributed in other EU Member States, which will have had to implement the same copyright extensions.

Term extension too late for Love Me Do

Two independent labels have released versions of the Beatles’ track 'Love Me Do' and it’s B side 'PS I Love You' which officially fell out of copyright on 31 December 2012 (after fifty years) against the backdrop of the sound recording copyright term being extended in Europe to a term of seventy years. 

The term extension was agreed at a European level after a change of heart by the UK government and extensive lobbying by the recorded music industry. For the UK record industry, there was an real urgency, as it’s catalogue of mid-1960s recordings, including key Beatles and Rolling Stones releases, were approaching the end of their 50 year term. The extension, which was dubbed the Cliff Richard extension because an increasing number of the Peter Pan of Pop’s recordings would enter the public domain, was also helped by stories of ageing session musicians who might still earn royalties from the 1960s hits they were involved in, thanks to a rule that says any recording artists involved in a recording are due a cut of public performance royalties via collecting society PPL, despite past recording agreements with the record labels who released and usually owned the recordings and often pay disgracefully low royalties to artistes.

The European term extension now has to be incorporated into UK law and this is set to be done by November this year – and the UK's Intellectual Property Office has begun that work with a consultation on copyright, although clearly the principle of the extension itself is no longer up for debate. CMU Daily reports that in particular, there is a planned 'use it or lose it' provision which was extensively lobbied for by the Music Managers Forum amongst others on behalf of their clients - recording artistes - that will mean that labels must ensure that recordings 50 year old and over are available for consumption and purchase, otherwise a featured artist will be able to claim control of the copyright. Quite what 'making available' means, and how featured artists will go about claiming control, is still to be worked out, but Iona’s blog last week gave us a clue when it highlighted Sony’s actions in releasing a number of Bob Dylan tracks as a four-disk compilation of Bob Dylan songs, which was released last month to enable Sony (and therefore Dylan?) to cash in on the songs on Dylan's 1962 debut LP, which would otherwise have entered the public domain in Europe on 1 January 2013. Just 100 copies of the CD  'The Copyright Extension Collection, Vol 1' were released to selected record shops,

As Eleonora explained last week, input on all of thus is being welcomed by the IPO until the 4th March this year. EU provisions mean that the extension to 70 years must be in place by November.  However, those recordings released in 1962 which went into public domain at the end of last month will not benefit from any retrospective application of the change – and that includes the original recording of 'Love Me Do' and 'PS I Love You'.

CMU Daily reports that Digital Remasterings have included 'Love Me Do' on a compilation of very early Beatles recordings, mainly live recordings from their time working at Hamburg's Star Club and Pristine Classical, which specialises in releasing remastered versions of out-of-copyright classical recordings, has issued its own remaster of 'Love Me Do'.

And see Extending The Term  http://www.musiclawupdates.com/?p=174 and the CMU Daily website here http://www.thecmuwebsite.com/article/mmf-and-fac-speak-up-for-featured-artists-in-copyright-extension-consultation/

Bob Dylan: The Copyright Extension Collection

As Eleonora reported on Monday, the IPO recently launched a consultation to gather views on the draft regulations intended to implement Directive 2011/77/EU in the UK, which would extend the term of protection for performers and sound recordings from 50 to 70 years. This directive was known as the Cliff Richard Directive as it enabled Sir Cliff Richard to continue to receive royalties on songs recorded in the early 1960s.

Now, because the 20-year extension only applies to works published before the expiry of the 50-year term, we are seeing a new release from Bob Dylan - his 50th Anniversary Collection, straightforwardly subtitled "The Copyright Extension Collection". This is a four-disk compilation of Bob Dylan songs, which was released last month to enable Sony (and therefore Dylan) to cash in on the songs on Dylan's 1962 debut LP, which would otherwise have entered the public domain in Europe on 1 January 2013. 

 

According to Rolling Stone, Sony Music have said that "This isn't a scheme to make money. The copyright law in Europe was recently extended from 50 to 70 years for everything recorded in 1963 and beyond. With everything before that, there's a new 'Use It or Lose It' provision. It basically said, 'If you haven't used the recordings in the first 50 years, you aren't going to get any more.'"

Most Dylan fans will be disappointed however as Sony have only released 100 CDs to select record shops. At least one of these is for sale on eBay: current bid US $1,077.63.

Given that last November readers unanimously answered "yes" when I asked "Is the term of protection of copyright too long?", I would be interested in hearing your views on this loophole.

Copyright term extension: here's the new Directive

Directive 2011/77/EU of the European Parliament and of the Council of 27 September 2011 amending Directive 2006/116/EC on the term of protection of copyright and certain related rights -- the Cliff Richard Directive -- has now been published on the website of the Official Journal of the European Union. You can read it in full here.

The main bit of the Directive reads like this:

"Article 1 

Amendments to Directive 2006/116/EC [on the term of protection of copyright and certain related rights (codified version), formerly Directive 93/98]

Directive 2006/116/EC is hereby amended as follows: 

(1) The following paragraph shall be added to Article 1: 

‘7. The term of protection of a musical composition with words shall expire 70 years after the death of the last of the following persons to survive, whether or not those persons are designated as co-authors: the author of the lyrics and the composer of the musical composition, provided that both contributions were specifically created for the respective musical composition with words.’. 

(2) Article 3 shall be amended as follows: 

(a) in paragraph 1, the second sentence shall be replaced by the following: 

‘However,
— if a fixation of the performance otherwise than in a phonogram is lawfully published or lawfully communicated to the public within this period, the rights shall expire 50 years from the date of the first such publication or the first such communication to the public, whichever is the earlier,
— if a fixation of the performance in a phonogram is lawfully published or lawfully communicated to the public within this period, the rights shall expire 70 years from the date of the first such publication or the first such communication to the public, whichever is the earlier.’; 

(b) in the second and third sentences of paragraph 2, the number ‘50’ shall be replaced by ‘70’; 

(c) the following paragraphs shall be inserted: 

‘2a. If, 50 years after the phonogram was lawfully published or, failing such publication, 50 years after it was lawfully communicated to the public, the phonogram producer does not offer copies of the phonogram for sale in sufficient quantity or does not make it available to the public, by wire or wireless means, in such a way that members of the public may access it from a place and at a time individually chosen by them, the performer may terminate the contract by which the performer has transferred or assigned his rights in the fixation of his performance to a phonogram producer (hereinafter a “contract on transfer or assignment”). The right to terminate the contract on transfer or assignment may be exercised if the producer, within a year from the notification by the performer of his intention to terminate the contract on transfer or assignment pursuant to the previous sentence, fails to carry out both of the acts of exploi­tation referred to in that sentence. This right to terminate may not be waived by the performer. Where a phonogram contains the fixation of the performances of a plurality of performers, they may terminate their contracts on transfer or assignment in accordance with applicable national law. If the contract on transfer or assignment is terminated pursuant to this paragraph, the rights of the phonogram producer in the phonogram shall expire".

2b. Where a contract on transfer or assignment gives the performer a right to claim a non-recurring remun­eration, the performer shall have the right to obtain an annual supplementary remuneration from the phonogram producer for each full year immediately following the 50th year after the phonogram was lawfully published or, failing such publication, the 50th year after it was lawfully communicated to the public. The right to obtain such annual supplementary remuneration may not be waived by the performer. 

2c. The overall amount to be set aside by a phonogram producer for payment of the annual supple­mentary remuneration referred to in paragraph 2b shall correspond to 20 % of the revenue which the phonogram producer has derived, during the year preceding that for which the said remuneration is paid, from the reproduction, distribution and making available of the phonogram in question, following the 50th year after it was lawfully published or, failing such publication, the 50th year after it was lawfully communicated to the public. Member States shall ensure that phonogram producers are required on request to provide to performers who are entitled to the annual supplementary remuneration referred to in paragraph 2b any information which may be necessary in order to secure payment of that remun­eration. 

2d. Member States shall ensure that the right to obtain an annual supplementary remuneration as
referred to in paragraph 2b is administered by collecting societies. 

2e. Where a performer is entitled to recurring payments, neither advance payments nor any
contractually defined deductions shall be deducted from the payments made to the performer following the 50th year after the phonogram was lawfully published or, failing such publication, the 50th year after it was lawfully communicated to the public.’. 

(3) The following paragraphs shall be added to Article 10: 

‘5. Article 3(1) to (2e) in the version thereof in force on 31 October 2011 shall apply to fixations of performances and phonograms in regard to which the performer and the phonogram producer are still protected, by virtue of those provisions in the version thereof in force on 30 October 2011, as at 1 November 2013 and to fixations of performances and phonograms which come into being after that date. 

6. Article 1(7) shall apply to musical compositions with words of which at least the musical composition or the lyrics are protected in at least one Member State on 1 November 2013, and to musical compositions with words which come into being after that date. The first subparagraph of this paragraph shall be without prejudice to any acts of exploitation performed before 1 November 2013. Member States shall adopt the necessary provisions to protect, in particular, acquired rights of third parties.’. 

(4) The following Article shall be inserted: 

‘Article 10a 

Transitional measures 

1. In the absence of clear contractual indications to the contrary, a contract on transfer or assignment concluded before 1 November 2013 shall be deemed to continue to produce its effects beyond the moment at which, by virtue of Article 3(1) in the version thereof in force on 30 October 2011, the performer would no longer be protected. 

2. Member States may provide that contracts on transfer or assignment which entitle a performer to recurring payments and which are concluded before 1 November 2013 can be modified following the 50th year after the phonogram was lawfully published or, failing such publi­cation, the 50th year after it was lawfully communicated to the public.’. 

Article 2 

Transposition 

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 November 2013 [i.e. in a very generous two years' time]. They shall forthwith inform the Commission thereof. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive".

Thanks, Chris Torrero, for being so swift with the link!

Sound Recording Term Directive adopted

As predicted by Ben's post on Friday, the Council of Ministers this morning adopted the new Copyright Term Extension, with an implementation deadline of 2 years.

There is of course no formal text yet, but the language which will form the new Directive can largely be found here As usual, lots of "minor" details are left to Member States to implement and no doubt that is where the lobbying machine will next be turning - for example, for sound recordings where copyright will revive, Member States have to protect the "acquired rights of third parties" who have been exploiting public domain material.

Interestingly, the list of dissenting countries is quite long - Belgium, the Czech Republic, Netherlands, Luxembourg, Romania, Slovakia, Slovenia and Sweden all voting against and Austria and Estonia abstaining - so enthusiasm for this measure is still far from unanimous.