7 Term of copyright protection
| (29892)
12217/08
+ ADDs 1-2
COM(08) 464
| Draft Directive amending Directive 2006/116/EC on the term of protection of copyright and certain related rights
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| Legal base | Article 47(2), 55 and 95 EC; co-decision; QMV
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| Department | Business, Innovation and Skills
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| Basis of consideration | Minister's letter of 15 March 2011
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| Previous Committee Reports | HC 19-xviii (2008-09), chapter 7 (3 June 2009); HC 16-xxxiv (2007-08), chapter 6 (5 November 2008)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
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
Conclusion
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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