Ben Farrow is a JD candidate at Osgoode Hall Law School.
On September 12, 2011, the European Parliament extended the copyright term for performers from 50 to 70 years and implemented three important reforms to the copyright system by adopting an amendment to its existing copyright reform legislation, Directive 2006/116/EC on the term of protection of copyright and certain related rights. The amendment is sometimes referred to as “Cliff’s law” or “the Beatles extension” because both Cliff Richards and Paul McCartney are seeing the copyright in their 60’s era recordings begin to expire.
Although many big-name artists support the legislation, the drafters of the amendment argue that it is actually intended to protect small-time session musicians. According to a FAQ published by the European Commission, “if the present term of 50 years was not changed, some 7,000 performers in the UK alone would lose all of their airplay royalties over the next ten years.” As well, the document highlights the fact that “the term extension will give average performers additional income ranging from €150 to €2,000 per year.” This additional income is a drop in the bucket for big-name superstars; however, for the majority of musicians who rely on their airplay royalties to survive, the extra cash represents an important boost. The idea is that artists who record hits when they are in their 20’s should be able to retire and continue to receive royalties from their work well into their old age.
Even though the Commission claims the new rules will not force a hike in retail music prices, opponents of the amendment worry that the extension will unfairly advantage the record companies and cost the public “more than €1 billion”. Supporters argue that the changes are needed to ensure that artists retain control over their work and continue to benefit from the fruits of their labour. Helen Lindvall, writing for The Guardian’s Music Blog, touts the brass section playing on the Beatles hit “All You Need is Love” as a prime example of artists who deserve the support that an extra 20 years of copyright protection will provide.
In addition to the term extension, the European Commission also established three accompanying measures designed to improve and homogenize the European copyright system. The details of the three measures are spread throughout the full text of the amendment; however, the Commission has summarized them efficiently in their accompanying FAQ. The first measure is a so-called “20% fund” which will see a slush fund paid-for by the record companies to compensate session musicians. This fund will “ensure that performers who are forced to sell their rights against a one-off flat fee obtain additional payments during the extended term.” The second supplementary measure contained in the amendment is a so-called “use it or lose it” clause which will see artists regain control over the copyright in their performances if a record company chooses not to market a recording despite a direct request from the artist. The idea is that this rule will allow artists to market these performances on their own. The Commission’s third supplementary measure has been called the “clean slate provision”. This change means that producers cannot make deductions from long-term contractual royalties due to performers.
In addition to a general extension on the copyright for performers, the amendment and its associated directive also represent a harmonization of the European copyright system. Under the old regime, each member state had different rules related to copyright and how co-written works were treated. Under the new rules, the copyright in performed works will expire 70 years after the death of the last surviving author. Although the council of ministers approved the provisions on September 12, 2011, member states have until 2014 to write them into law.