Cliff's Law Ends the Status Quo on Copyright Term

The directive to extend the terms of protection for performers and sound recordings from 50 years to 70 years was adopted on 12 September 2011.

The new law is known as ‘Cliff Richard’s law’, following a campaign by artists such as Cliff Richard that performers should continue to earn from their work and don’t want to see their works being exploited for free during their lifetime.

The decision appears to be quite a u-turn from previous recommendations made.  The Gowers Review in 2006 recommended that the length of protection on sound recordings and performers’ rights should remain at 50 years.  The Hargreaves Review, published in May this year, stated that an extension to copyright would be economically detrimental.

The reasoning for the extension covers a number of areas:-

• Most performers start their music careers at a young age, together with the increase in average life expectancy, means that many performers would not be able to enjoy the benefits of their creation at one of the most vulnerable periods of their life.

• Without the extension, it has been estimated that some 7,000 performers in the UK would lose their royalties over the next 10 years.  A large number of these performers are not rich and famous musicians, but anonymous session musicians.

• The extension will benefit record producers who will receive additional revenue from the sale of records in shops and on the internet.  This would be welcomed in the industry, as producers struggle to cope with a changing business environment and the popularity of free online music.

The extension of the copyright term has proved to be controversial, with a number of people arguing that the copyright extension will only benefit a relatively small number of performers of successful older works (a point cited in the Gowers Review regarding research conducted by the University of Cambridge).  The other major benefactor will be record companies, who generally take most of the royalties from sound recordings.  EMI will be one of many celebrating the new law, with another 20 years of potential earnings from the Beatles catalogue, which was set to start coming out of copyright in 2013. 

There are direct benefits to performers to be introduced under the directive to improve their revenue. 

A sessions musicians fund will be introduced. Record companies will be required to set up and pay into the fund 20% of their revenues earned during the extended period.  This is to ensure that performers who are forced to sell their rights against a one-off flat fee, obtain additional payments during the extended term.

A ‘use it or lose it’ provision will also be introduced, so that if record companies fail to market the sound recording, they will lose control over the copyright and performers will get their rights back.

Finally, a ‘clean state’ provision will prevent record producers from making deductions to the royalties they pay to featured performers after the initial 50 years.

Written by Laura Nickson, a Solicitor in Nelsons’ Commerce and Technology group.