This article examines the potential impact on HE and FE institutions of the EU Directive that extends the term of protection for performers and sound recordings to 70 years which was adopted on 12 September 2011.
The
Directive, which amends
Directive 2006/116/EC on the term of protection of copyright and certain related rights, increases performers’ rights in a sound recording of their performance from 50 years to 70 years from the date of first lawful publication or communication to the public. It also increases the rights of producers of sound recordings from 50 years to 70 years from the date of first lawful publication or communication to the public.
The aim of the directive is to bring performers’ protection more in line with that already given to authors – 70 years after their death. The extended term will enable performers to earn money for a longer period of time and in any event throughout their lifetime.
The Background
Performers are entitled to various rights in their performances, whether these take place on the stage, during a concert and so on. It is possible in certain circumstances for a lecturer to have rights in their “performance” of a lecture.
Performers also have rights in any recordings, films or broadcasts of their performances. It is these rights in the recording of the performance which can attract royalties and which can generate income for the performer. It also means that those who include performances in their recordings need to respect and often remunerate performers for their performance.
Under current EU laws, recorded musical performances are protected for a maximum of 50 years after their fixation in a record. This means, for instance, that over a period of 50 years, performers are paid each time their work is played on the air and in public places such as bars and discotheques. After 50 years, performers lose control over the use of their performances and no longer receive any income from them.
The extension of the term of protection for performers now adopted means that artists in Europe will receive a fairer treatment and be assured of a steady income for their performances during their entire lifetime.
When do the changes come into effect?
EU member states have two years from the date of entry into force of the Directive to make the changes to their national law. The date of entry into force is twenty days from the date of publication of the Directive in the Official Journal of the EU. The Directive 2011/77/EU was published on 11 October 2011 and this therefore means that the change should become part of UK law by 01 November 2013.
How long do performers' rights last at present?
Performance rights expire:
- 50 years after the end of the calendar year in which the performance took place (at the end of the 31st of December of that year).
or
- if during that period a recording of the performance is released, the rights expire 50 years after the end of the calendar year of the performance's release.
What will be the duration of performers' rights after the Directive has been transposed into UK law?
Where a sound recording has been made of a performance and that sound recording is lawfully published (released to the public) then the rights of the performer will expire 70 years from the date of the first publication.
For producers of sound recordings as long as they release the sound recording then their rights to exploit the recording will be extended by 20 years to 70 years.
Do the changes affect performers only?
In practice the changes affect the rights of performers within a musical recording by adding 20 years to their right to exploit their performance where this is recorded and published. The rights of producers likewise are extended by 20 years as long as they publish the sound recording. Composers of musical compositions and lyricists own the copyright in their music and lyrics respectively and this copyright continues for a period of 70 years after their death.
Our institution has audio recordings of lectures. Will this change affect those recordings?
Copyright in works created by staff will normally be owned by the institution (S.11.2 CDPA). However S.11.2 CDPA does not apply to sound recordings. The first owner of copyright in a sound recording will be the producer. Arguably, in many cases, this will be the institution where the institution organises and directs the recording of a lecture.
Irrespective of copyright in the recording in certain circumstances the lecturer will own the performance rights in the lecture which is being recording and therefore the ability to control how the sound recording is used and disseminated. These performance rights can be assigned to the institution or a licence granted to allow the institution to record the performance and to use the recording for the purposes agreed in the licence.
For FE and HE institutions that are engaged in recording lectures it is advisable that lecturers sign a consent form granting the institution permission for the recording which includes not only an assignation of performance rights or a licence of those rights but clarification that the institution will be the copyright owner of the sound recording.
Following implementation of the new Directive in the UK, where the institution publishes or communicates the sound recording to the public then the copyright owner (the institution) will be able to retain control over how the recordings are used for 70 rather than 50 years from such publication or communication to the public. This means for example that where an institution makes an audio recording available as part of an OER under a Creative Commons CC BY-NC licence they would be able to restrict use to non-commercial purposes for a further 20 years.
The performance rights in the sound recording will also be extended for a further twenty years from the date of publication or communication to the public therefore the lecturer will be able to exercise control over reuse for an additional twenty years unless the performance rights have been assigned to the institution.
For further information on recording lectures please refer to the JISC Legal Publication Recording Lectures: Legal Considerations
A lecturer at our institution wants to use a recording of a 60s hit in a presentation to students will the new law affect this use?
Permission will be required from the performer (unless he has assigned his performance rights) and the record producer for use of a sound recording in a presentation unless the use constitutes fair dealing for criticism and review of the recording in question or another work. How the copyright exceptions apply in the work that FE and HE institutions carry out is explained on the JISC Legal website at -
www.jisclegal.ac.uk/educationexceptions.
Where a sound recording was released in the 1960s the impact of the Directive will depend on the date of release of the recording. A recording released less than 50 years ago as of end of 2013 ie released after 1963 will be protected for a further twenty years therefore the institution will need to seek permission for use until 2033.
What is the history of these changes?
JISC Legal previously reported on proposed changes to the copyright term for sound recordings in
2009. Original proposals which would have seen performers' rights extended to 95 years after the recording were rejected by the European Parliament which supported an extension to 70 years on 23rd April 2009. A 'blocking minority' at the Council of Ministers appears to have prevented the new laws from being passed for two years since EU Directives require approval from both the European Parliament and Council of Ministers.
What is the effect of the changes for those in FE and HE?
For many in FE and HE institutions these changes will have little effect. However for an individual that has performance rights in a sound recording and who receives royalties for that performance then they are likely to benefit financially from the extension of the period when the rights are protected.
For institutions that are the rights holders of performances these changes provide a significant extension to the time that they are entitled to make use of the rights.
Likewise for institutions it is perhaps a timely reminder to clarify with those performers that carry out performances at their institutions what the duration of rights in performances are and what the institutions policies are on exploiting the performance rights.