Brussels, 16 July 2008
Commission Proposal on a Directive for Term
Extension – Frequently Asked Questions (see
1. What is meant by term extension?
Under current EU laws, recorded musical performances are protected for a
maximum of 50 years. This means that over a period of 50 years,
performers receive remuneration for each time their work is played on the air,
in public places such as bars and discotheques and also receive compensation
payment for private copying of their performances. After 50 years, artists lose
control over the use of their works and no longer receive this important source
Composers on the other hand enjoy this form of copyright protection for 70
years after their death.
With this proposal, the Commission aims to extend the term of copyright for
performers to 95 years. This means that artists in Europe will be insured
of a steady income for their performances during their entire lifetime.
2. Why is this directive aimed at performers?
If the present term
of 50 years is kept, some 7.000 performers, in the UK alone, will lose all of
their airplay royalties over the next ten years. We are not talking about
featured artists like Sir Cliff Richard or the Beatles here. This is about the
thousands of anonymous session
musicians, who contributed
to sound recordings in the late fifties and sixties. They will no longer get
airplay royalties from their recordings, even though these royalties often
contribute to their pension. They will lose protection just when online
retailing promises a new source of revenue.
3. What about consumer prices? Are they not going to rise?
Empirical studies show that the price of sound recordings that are out
of copyright is not lower than that of sound recordings in copyright. One
study concluded that there
was no systematic difference between prices of in-copyright and out-of copyright
The study also indicates that there are many other factors
that explain the price of a sound recording, such as the popularity of a
performer's individual song or the stage in his career when he recorded a song.
It is interesting that sometimes a particular performer's early song that is out
of copyright is more popular, and thus more expensive, than a later and less
popular song that is still in copyright.
The proposal will also not
affect the amount of airplay royalties that broadcasters have to pay: all the
public performance rights broadcasters rely on are managed collectively and
broadcasters pay a fee based on turnover - irrespective of how many performers
are protected or not. No broadcaster clears sound recordings on a 'per track'
It should also be stressed that broadcasters pay less than 1% of
their turnover to the music industry. In these circumstances, there is hardly a
case to be made that copyright in general has a significant impact on the
To conclude: Harmonising the term of protection would not have
a negative impact on prices. For broadcasters and music in bars and
discotheques, the licence fee does not depend on whether parts of the works
performed are in the public domain. For consumers downloading music, there would
be no negative impact, as downloads are not priced according to whether a song
is in the public domain.
4. What about historical archives? Will they be available for online use?
A term extension for performers will not affect projects to make
available a variety of historic broadcasting archives available for
dissemination. These archives are covered by the blanket license that is granted
by performers' collecting societies. If old performers cannot be found, the
collecting society will keep his share and try to locate him: this is not a
problem to be borne by the broadcaster.
5. Will only superstars benefit from the proposal?
Commission's impact study demonstrates that the proposal would give average
performers additional income to the tune of anything ranging from € 150 to
€ 2000 per year. These amounts, mostly attributable to airplay royalties,
might not appear spectacular for those that have salaried jobs, but they are
often considerable for musical performers. In this sense, the extension is fit
6. What about performers who already transferred their rights to the
The term extension will come with a provision that performers can recuperate
their copyright if the label does not wish to market their recordings further.
This is commonly referred to as the 'use-it-or-lose it' provision. Without a
term extension, we could not introduce this very performer-friendly remedy. The
clause will empower performers to market their early songs themselves.
In any case, if neither the record producer nor the performer shows any
interest in marketing the sound recording within a year after term extension,
the sound recording will not be protected any longer. It will be freely
available for public use.
Also, the record industry will have to set aside a percentage of sales income
and distribute these monies to performers who, at the beginning of the term,
were bought off with a single payment.
In addition, airplay royalties and the compensation for private copying are
never assigned to producers. Session musicians hold on to these income streams
which, in old age, are often their principal pension. Airplay accounts for 57%
of performers collecting societies' income.
7. Have performers not earned enough in the 50 years of
Most performers or singers and session musicians start their career in their
early 20's or even before. That means that the current 50 year protection ends
when they will be in their 70's. Current life expectancy in the EU stands at
75.1 years for men and 81.2 years for women and it is usual for persons to live
well into their 80's and 90's. Once protection has ended, performers no longer
receive any income from their sound recordings. For session musicians
and lesser known artists this means that income stops when performers are
retired - the most vulnerable period of their lives.
Even after 50 years, performers still get airplay revenue and now with the
Internet there is the 'long-tail' phenomenon. That means that a lot of 'niche'
repertoire will be offered in specialised websites. If the revenue is too low
for record labels, the use-it-or lose it provision kicks in and the performer
recovers his copyright and can put out the recordings for his fans to enjoy. In
this way performers can discover that there is still a fan base out there and
earn a bit of money, even if the labels would not find further marketing
8. Will record producers also benefit from this copyright
Yes. With the copyright term extended, record producers will
receive additional revenue from the sale of records in shops and on the
Internet. This should allow producers to adapt to the rapidly changing business
environment which is characterised by a fast decline in physical sales (- 30%
over the past five yeas) and the comparatively slow growth of online sales
9. Are there other schools of thought on extending copyright
Yes. Most prominently there is the Gowers Report prepared for
the UK government. As it
reasons against copyright extension based on economic analysis alone, the
Commission feels that this cannot be the whole story. The Commission believes
that Copyright represents a moral right of the performer to control the use of
his work and earn a living from his performance, at least during his lifetime.
The Commission has not seen a convincing reason why a composer of music should
benefit from a term of copyright which extends to the composers life and 70
years beyond, while the performer should only enjoy 50 years. For his early and
often most successful recordings, a 50-year term often does not even cover his
Secondly, the Gowers Report looks at the situation from a UK
standpoint and only talks about performers' royalties from their exclusive
rights. Performers actually receive a large part of their income from
remuneration for the broadcast of their performances in music (airplay
royalties) and in most other EU Member States (except the United Kingdom and
Ireland) from compensation for private copying. The Gowers Report does not
mention these two types of very important sources of remuneration at all.
Airplay royalties account for 57% of the revenue collected by performers'
societies and private copying monies account for 38%. Both airplay royalties
and private copying compensation are administered by collecting societies and
are not transferred to record companies.
10. But isn't the Commission extending a monopoly?
No, copyright in a sound recording is not a monopoly. Copyright on a
sound recording, maybe as opposed to a unique book, provides absolutely no
monopoly power to its owner -- there are so many interchangeable sound tracks
out there that compete for audience. Copyright protected recordings often
compete with other protected recordings and with those that are in the public
domain. That keeps prices down. Maybe there is a bit less substitutability than
in the area of those eternal bestsellers we call 'durable books'.
11. What is a co-written musical composition and why is this part of the
A "co-written musical composition" is a musical composition
which comprises contributions from several authors. A musical piece, for
instance pop music or an opera, often includes lyrics (or a libretto) and a
In different Member States, such co-written musical
compositions are either classified as:
(1) A single work of joint
authorship with a unitary term of protection, running from the death of the last
surviving co-author; or
(2) Separate works with separate terms
running from the death of each individual author.
This means that a
single piece of music will have different terms of protection in different
Member States. Harmonisation of copyright terms with respect to those works is
The Directive on copyright
term, which will be amended
by this proposal on term extension, already contains a special rule which solves
a similar problem specifically for films. The proposal would simply extend that
rule to co-written music, in order to ensure that such music enjoys the same
term of protection in all Member States. A largely technical amendment would
ensure that the objective of harmonisation of the term of protection is
12. Why have you added on a provision of co-written musical
compositions? Is that really important?
The current discrepancies in the
term of protection for co-written music cause problems in relation to the
administration of copyright across the EU. Collecting societies administering
cross-border payments to authors apply different rules to calculate fees and
distribute payments to authors. This leads to legal uncertainty and creates
unfair distortions in the way co-authors are paid.
This is a significant
problem because music is overwhelmingly co-written. For example, in musical
genres such as jazz, rock and pop music, the creative process is often
collaborative in nature. Members of music bands are also often co-authors of the
band's music. Estimates suggest that between 60% and 70% of music is co-written
(based on data for Spain, the UK and France). With time, an increasing number of
works will be affected.
More information on Intellectual Property is available at:
 Musicians hired for one
recording only and paid off with one single payment when the recording is
 By Price Waterhouse
The Impact of Copyright Extension for Sound Recordings in the UK, (report
commissioned by the BPI), 2006
 By Andrew Gowers The
Gowers Review of Intellectual Property
(Report commissioned by HM Treasury), December 2006
Available at: www.hmtreasury.gov.uk/independent_reviews/gowers_review_intellectual_property/gowersreview_index.cfm
 Directive 2006/116/EC,
OJ L 372 of 27.12.2006, p. 12