1709 Blog: for all the copyright community

Tuesday, 11 October 2011

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!

4 comments:

Francis Davey said...

So, does that mean that if a performance is published in a film, it only lasts 50 years?

Benjamin Farrand said...

Yes, according to the Directive at subsection (2)(a), it only applies to phonographic reproduction, and not other forms such as film. It was a source of consternation for the movie industry, who are now pushing for an amendment to the Directive (or a new Directive altogether) in order to achieve equal levels of protection. I suspect the fact that music has this level of protection will be used by the European Commission's Internal Market and Services DG to justify increased protection for other forms of reproduction.

AndyJ said...

@Francis. You comment reminds me of the utter nonsense contained in paras 7 and 8 of Sched 1 to CDPA 1988. To paraphrase it quite loosely, a film made before 1 June 1957 isn't a film, it's a dramatic work + a (large) series of still photographs + a sound recording.

Stephan White said...

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".



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