Article: EXTENDING THE TERM
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Click here to download this article as a PDF file (.pdf) Should the UK recording industry have new obligations as well as new rights if the copyright term for sound recordings is extended? Ben Challis, LLB MA MA(law) FRSA Barrister-at-law In this article Ben looks at the current moves by the UK’s recording industry to push for a Europe wide extension in the term of copyright for sound recordings - from fifty years to ninety five years. But Ben asks if this is the time for a complete overhaul in the way copyrights are owned and suggests that any change in term should only be made with additional provisions to protect both the customers and the creators of recorded music. Front page news in the UK trade magazine Music Week on the 4 th March 2006 was the headline ‘Timefor Action’ launching a major campaign under the ‘Extend The Term!’ banner, calling on the UK Government to take action over extending the term of copyright for sound recordings. Currently the term of copyright protection for original literary, dramatic, musical and artistic works along with Films is seventy (70) years from the death of the author or last surviving author pursuant to the provisions of the Copyright Designs and Patents Act 1988s12 and s13B. However S13A of the same Act provides that the copyright in sound recordings in the UK lasts for only fifty (50) years from the end of the calendar year in which the recording is made or released. And this is what is agitating the British Phonographic Industry as its members being to see some very valuable copyrights (such as early sound recordings from Elvis Presley and Cliff Richard) enter the public domain. But this is not just a UK issue as copyright protection is, in general terms, harmonised across the European Community and the recording industry is seeking extension in copyright term in sound recordings on a European wide basis. The UK Government has already responded to industry calls by appointing Andrew Gowers, formerly editor of the Financial Times, to review issues in intellectual Property. Mr Gowers has now issued a call for evidence relevant to his review. At the top of his list of the twelve areas of IP he wishes to address in his review is the current term of protection for sound recordings including raising the issue of whether or not an extension to ninety five (95) years, to mirror protection in the US, is appropriate; Gowers has asked for:
- evidence that a change in term would impact on investment, creativity and consumer interest
- evidence that extended terms in other markets has had an impact on investment, creativity and consumer interest
- whether any alternative arrangements could accompany any extension of term
- whether any change should be retrospective or just cover new works
- That there should be an extension of the copyright term in sound recordings to say seventy years from the date of recording. It is possible to argue that this should go further - for seventy years after the death of the last performer on a recording. This would then mirror other copyrights.
- And a similar extension of the term for performers rights (in live recordings – again to seventy years or life plus seventy years)
- an automatic and irrevocable re-assignment of copyright in sound recordings to the recording/performing artist(s) after 25 years and
- Earlier return of copyrights to recordings artists (and indeed songwriters) where the work is not commercially exploited by a record label (or a music publisher).
- A legal recognition of recoupment by artists in terms of a return of ownership of masters or joint ownership and/or joint control with labels when an artist recoups.
- a fiduciary duty placed on labels to account to the recording artist(s) on a regular basis for an equitable share of all revenues for the life of copyright / term and/or
- An obligation placed on record labels to account transparently to artists and account on source income.
- The automatic return of copyrights where there is a failure to account.
- Criminal sanctions (as with copyright infringement) for directors of companies for failure to account to original authors, composers and performers.
- The automatic return of copyrights in the case of the bankruptcy/liquidation of a company