21 Mar VLT legal responds to government consultation
The Government’s recent Consultation on the implementation of the extension of the copyright term for sound recordings (from 50 years to 70 years after the recording was first issued to the public) closed at the beginning of this month. The way in which the regulations are implemented could have an impact on performers’ income, and so VLT LEGAL sent in a response to some of the questions, which were of particular relevance to orchestral, solo and chamber musicians as well as session musicians.
The new regulations are due to come into effect in November this year, and one of the issues to be addressed is the extent to which the new rights will be exercisable by representatives of a performer who has already died within the initial fifty year period.
An official response document will be published in due course, but in the mean time you can read VLT LEGAL’s response below:
RESPONSE to Consultation on the implementation of Directive 2011/7/EU amending Directive 2006/116/EC on the Term of Protection of Copyright and Certain Related Rights
1. Should the Regulations provide a clear definition of the term “sufficient quantities”? If so, what specific text do you think we should use?
The definition of “sufficient quantities” is of great importance because of the central part it will play in triggering the performer’s termination of the agreement to assign or transfer the performer’s rights. [If the record company fails to make copies of the recording available in sufficient quantities, the performer can give 12 months’ notice of his/her intention to withdraw their permission for the record company to exploit the recording.]
a) In the context of classical musicians, their expectations of the purpose and usefulness of recordings is likely to be different to those of commercial musicians; recordings are not necessarily viewed primarily as a source of income through sales, therefore a definition of “sufficient quantities” that is framed in terms of unit sales would not always be relevant.
Instead, recordings are often an extremely valuable promotional tool, and so classical musicians would like to have sufficient quantities of recordings available to enable themselves or their agents to send recordings (as CDs or digital files) to promoters and radio stations in order to increase their opportunities to earn live performance income.
In this context, in the words of one musician: “1000 CDs can last several years”.
b) It would be very useful if the requirement under condition 2 of Regulation 191HA(2) that the recording be made available to the public as a download should be extended so that there would also be a requirement to make it available as a digital file for promotional use.
Record companies are likely to argue that “sufficient quantities” must be above a minimum level at which it is economically viable to make copies of the recording. The suggestions at a) and b) above would probably fall below that minimum level. For many classical musicians, profit is not the only objective when making a recording. Many of them would very much like to be able to obtain control of recordings – and particularly the digital rights in them – that have lain dormant for years. Therefore a de minimis definition of “sufficient quantities” would be a useful tool if it could trigger termination of the relationship with the record company and release ownership of the sound recording rights to the performers.
3. Do you agree with our analysis of how the provisions of the Directive will operate where there are multiple performers in a sound recording?
This answer goes beyond the specific question, but we feel that the points made are important.
Where there are multiple performers in a sound recording there could be real problems with obtaining the consent of all to terminate their agreements. The problems could arise through a) a performer’s death; b) problems of tracing a performer or c) disagreement between the parties.
In the case of :
a) it is very important that the ability to terminate should be capable of passing by testamentary disposition or exercise by Power of Attorney (bearing in mind that in some situations the performer in question may be alive but unable to make the relevant decisions due to infirmity);
b) there should be provision that the performer’s consent to terminate is presumed after i) all reasonable efforts have been made to contact the performer and ii) a defined period of time has passed (6 months?) AND that, should the performer or performer’s representative come forward at any point in the future they would receive their share of income (back-dated) from future exploitation of the sound recording rights but would not have the right to withdraw the consent to terminate;
c) where the majority wish to terminate but a minority refuses, there should be provision that a majority decision is sufficient, with the minority given the right to opt in or out of receiving payments from future exploitation of the sound recording rights.
6. What will be the position where multiple performers on the same sound recording are members of more than one collecting society (if such a situation can arise) or where performers are not members of a collecting society?
Currently there is really only one collecting society that distributes to classical music performers, which is PPL. Classical musicians are generally members of PPL and find that, in combination with the MU, it offers a good service and does manage to collect and distribute royalties due on recordings going back many years
9. Is the producer (rightsholder) the party best placed to provide the information required by the performer to secure payment of the annual remuneration?
In theory the producer is the party best placed for this, however many classical musicians encounter great problems simply tracing the rightsholder and, having done so, making contact with them. With the consolidation over the years of smaller labels into larger ones, many performers report that they do not know how to trace the current rightsholder. In many cases, the small label which made the original recording has after various acquisitions finally ended up as part of one of the major labels; many classical performers report that the major labels refuse to acknowledge them and fail to respond to countless requests to provide information about recordings acquired in this way. Often the recording is no longer being exploited and outstanding stock has been destroyed or lost. The performers have no way of finding out where the master recording is or whether it even still exists.
There should be a requirement that the major labels provide such information as part of an ongoing responsibility after they acquire and absorb the benefit of the smaller labels.
10. Should the Regulations incorporate the optional provisions of Article 1(4) paragraph 2? What is the business case for doing so?
In relation to paragraph 58 under this question, we consider that the rights to receive an annual payment and to terminate an agreement should be capable of exercise by a performer’s heirs where that performer has died prior to commencement of the Regulations. Therefore a provision corresponding to Regulation 30 of the Copyright and Related Rights Regulations 1996 should be included.
©VLT LEGAL Services Ltd. March 2013