Out-Law News | 09 Jan 2013 | 12:54 pm | 2 min. read
The Intellectual Property Office (IPO) has drafted the new regulations in order to implement EU laws which were agreed on by the European Parliament and EU Ministers in 2011.
Changes made to the EU's Directive on the term of protection of copyright and certain related rights mean that from the date of publication, or from the date sound recordings are played in public or communicated to the public, producers and performers would generally have rights to the works for 70 years.
Where performers have transferred or assigned their rights to producers under contract, performers would be able to invoke a right to terminate those agreements after 50 years under certain circumstances.
Under those circumstances the performers would have to give notice to producers of their intention to terminate their agreement over the rights transfer. Producers would then have a year in which to sell copies of the sound recording "in sufficient quantity" or alternatively "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" if they wish to avoid losing their rights, according to the Directive.
However, the IPO said that it was wrong that producers should only have to comply with one of the requirements to either sell 'sufficient copies' or make the material available to the public. UK law should therefore require both conditions to be met by producers if they are to avoid losing their rights when challenged by performers, it has proposed.
"We consider that the correct interpretation is that, on receiving notice, the producer has to carry out both acts to prevent termination of the agreement," the IPO said in its consultation paper (70-page / 992KB PDF). "Taking this proposition as the starting point to interpretation, it would follow that in the first instance, a failure to perform one of the acts is sufficient for the agreement to be terminated."
"The alternative interpretation, that by doing one of the acts, the agreement cannot be terminated, would produce an inconsistent result between the two stages of the procedure. Accordingly, we consider that the most sensible construction of the Directive is that the producer is required to do both acts and if he fails to do one or the other or fails to do both, the agreement may be terminated," it said.
Under the new regime copyright would be said to subsist in the lyrics for musical compositions for 70 years from the date of the death of the last surviving author of the words.
"Currently under UK law, unless a work is a work of joint authorship ... the duration of copyright in a musical composition is 70 years from the end of the calendar year in which the author (if his identity is known) dies," the IPO said. "Thus, where a musical work is the product of a collaboration between a composer of the music and the author of the lyrics to be sung with the music, separate periods of protection will apply in relation to the music and the lyrics."
"This situation contrasts with the position in some EU Member States where musical compositions with words enjoy a single term of protection calculated from the death of the last surviving author. The Directive regards this distinction as an obstacle to cross–border collective management of such rights ... and therefore requires that the same harmonised term should apply in all Member States," it said.
In 2011 the European Commission said that the changes in the law would benefit 7,000 UK performers alone who would otherwise "lose all of their airplay royalties over the next ten years".