European Scrutiny Committee Contents

7 Term of copyright protection



+ ADDs 1-2

COM(08) 464

Draft Directive amending Directive 2006/116/EC on the term of protection of copyright and certain related rights

Legal baseArticle 47(2), 55 and 95 EC; co-decision; QMV
DepartmentBusiness, Innovation and Skills
Basis of considerationMinister's letter of 15 March 2011
Previous Committee ReportsHC 19-xviii (2008-09), chapter 7 (3 June 2009); HC 16-xxxiv (2007-08), chapter 6 (5 November 2008)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionCleared


7.1 Council Directive 932/98/EC harmonised the term of copyright protection for sound recordings and performers at 50 years. The Commission's proposal in this amending Directive would have been to extend it to 95 years. Its objective was to improve the position of musicians, the majority of whom cannot make a living from their performances. Performers who were active in the 50s and 60s now face the prospect of losing a source of income as the 50 year period expires. Record producers have, as it were, also jumped on the bandwagon for an extended period of protection for their recordings. In the UK the Gowers Review in December 2006 concluded there should be no change to the current term of 50 years.

7.2 The amending Directive also proposed harmonising the term of protection across all Member States of a "musical composition with words" so that it lasts for 70 years after the death of the last surviving lyricist or composer. Currently in the UK, if a lyricist and composer collaborate on a song so that one writes the lyrics and the other writes the music, the music and lyrics will each attract their own copyright (expiring 70 years after death of the particular author). If the two authors work together such that they both jointly write the music and lyrics and their contributions are not separable they are treated as joint owners of copyright and both the music and lyrics are protected for 70 years after the death of last surviving of the pair. In some other Member States, songs are treated as a single work with single term of protection, calculated from the death of the last surviving author (i.e. the composer of the music or the lyricist). The proposal to harmonise the term of protection for musical compositions with words would help, the Government says, to simplify the collective licensing arrangements across Member States, as the current inconsistency in copyright protection in the EU causes problems with regards to the distribution of royalties.

Previous scrutiny  

7.3 When it considered this proposal, the previous Committee[31] asked the then Minister of State for Higher Education and Intellectual Property at the Department for Innovation, Universities and Skills (Mr David Lammy) to comment further on: whether the Government supported extending copyright protection for performers' rights; the proposal for a fund for session musicians; the proposal that performers can take back their rights after 50 years if a record company has not published its record of the performer's performance; and also for an assessment of the weight of opinions received in the course of the consultation the Department was then conducting. The then Minister's letter of 26 March 2009 informed the previous Committee of the following:

  • there was a strong lobby in favour of an extension of copyright protection;
  • the then Government could see both the moral and economic justification in providing protection for performers that lasts for their lifetime. However, the proposed 45-year extension from 50 to 95 years went beyond what the Government considered necessary: "if we accept the argument that performers should receive royalties throughout their lifetime, a term of 70 years ought to be sufficient." Accordingly, the Council version of the text had been amended to provide for a term of protection of 70 years; and
  • for the proposal to be acceptable to the UK, any extension must be part of a package which delivers greater permanent benefits to performers (including session musicians).

7.4 A further letter of 2 June 2009 from the Minister asked the Committee to consider the revised draft urgently, with a view to clearing it in light of a possible first reading agreement with the European Parliament. The European Parliament had voted on a text in favour of an extension of copyright protection to 70 years. The agreed text also included the following benefits for performers, largely adopting amendments requested and drafted by the UK:

"A permanent fund for session artists, setting aside a sum corresponding to 20% of all sales revenue during the extended term, to provide a guaranteed income for those who often receive very little in the way of royalties (Article 3(2) and Recital 11).

"A permanent clean slate provision making sure that, after the original 50 year term, record labels are no longer permitted to enforce contracts that provide for royalty payments to go to the label to repay the initial costs in producing the recording instead of to the performer (Article 10a(1) and Recital 8/9). This applies to all contracts, not just those concluded before the Directive comes into force.

"A permanent use-it-or-lose-it clause, ensuring that recordings, which are not made available by right holders (following the original 50 year term) can be released by the performer (Article 3(2a) and Recital 7a)."[32]

7.5 Recognising the importance of the Directive for musicians, composers and performers, and that this compromise represented the best deal on offer, the previous Committee agreed to lift the scrutiny reserve in accordance with paragraph (3)(b) of the Scrutiny Reserve Resolution. It transpired, however, that a blocking minority in the Council prevented a first reading deal being adopted. This stalemate has lasted until now.

Minister's letter of 15 March 2011

7.6 The Parliamentary Secretary for Business and Skills at the Department for Business, Innovation and Skills (Baroness Wilcox) writes to say that the Government has recently learnt that Denmark has formally changed its position and now supports the proposal. Given this change, it is "almost certain" that a qualified majority has now formed. The Hungarian Presidency has confirmed that it is ready to call a vote, and this could happen in the next weeks with little notice. So she asks whether the Committee would consider lifting the scrutiny reserve


7.7 The final text approved by the European Parliament and now to be adopted by the Council introduces the following changes:

  • an extension of copyright protection from 50 to 70 years;
  • a fund for session artists (permanent measure) — where all record companies must set up a fund for session musicians[33] and set aside 20% of their revenues earned during the extended period of copyright protection. This would provide additional benefits to the session musician over and above the rights they would probably have waived on their initial contact;
  • a use-it-or-lose-it provision (permanent measure) — with the rights in the performance reverting to, and being retained by, the performer if the record producer does not exploit the track in the extended term;
  • a "clean slate" provision (permanent measure) — where the contract to repay money advanced in the early stages of a performer's career from royalties is removed at the 50 year point, even if the total amount repayable has not been accrued; and
  • harmonising the rules concerning the calculation of the term of protection for musical compositions with words.

7.8 We note that the Government is content with the final text; that no outstanding scrutiny questions arise; that the proposal has been blocked in the Council for nearly two years; that a qualified majority is likely now to form; that a vote could be called imminently, perhaps during Parliamentary recess; and, finally, that the proposal will bring into effect important changes in the remuneration of musicians and performers.

7.9 We are therefore content to clear it from scrutiny.

31   See headnote. Back

32   The Minister's letter of 2 June 2009. Back

33   Musicians hired for one recording only and paid off with one single payment when the recording is made. Back

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© Parliamentary copyright 2011
Prepared 7 April 2011