Reposted from DLA Piper's Media & Sport Group Bulletin

Editorial Team: Nick Fitzpatrick, Duncan Calow and Patrick Mitchell

EU ministers have adopted a Directive extending the term of protection for performers' copyright from 50 to 70 years.

The Directive, adopted at a meeting of the Council of Ministers on 12 September 2011, amends Directive 2006/116/EC on the term of protection of copyright and certain related rights.  It increases performers' rights in sound recordings and the rights of producers of sound recordings from 50 to 70 years from the date of first lawful publication or communication to the public.

The Directive also introduces additional rights for performers, including:

• A 'use it or lose it' clause - enabling the performer's rights in the sound recordings to revert to the performer if the record producer fails to sell the performer's records 'in sufficient quantity' or fails to make the recordings available to the public.  In each case the reversionary right will apply 'on expiry of a reasonable period' giving the  record producer time to carry out both of these acts.
• A recommendation to require record producers to create a fund for 'non-featured performers' (in particular, session musicians) into which they will be required to pay no less than 20% of revenues earned from sound recordings during the extended copyright period. This remuneration ensures that performers who originally assigned their rights to record producers in return for a one-off flat fee obtain additional payments during the extended term.
• A 'clean slate' provision - meaning that record producers will not be entitled to recover previously unrecouped advances payments or make any other contractual deductions from the royalties due to performers during the extended term.

Micel Barnier, EU commissioner for internal market and services stated that the decision, "will make a real difference for performers. With increasing life expectancy, the previous 50-year protection term was clearly insufficient. Despite the fact that their music and songs are still popular, today many performers are left without income when they are older".

Member states have two years from the date of entry into force of the Directive to enshrine the changes into national law.

The adoption of the Directive is one of the deliverables announced by the Commission in its Strategy on Intellectual Property Rights adopted in May 2011. For more information on this strategy please refer to the article in the May 2011 issue of Media Intelligence here.