Changes to the Copyright Designs and Patents Act 1988

The changes coming into force this November:

  • The term of protection for performers and sound recordings shall be extended from 50 to 70 years. ?
  • ‘Session funds’ for artists that allow for a performer that has assigned his rights to a producer in exchange for a single payment to receive an additional payment each year after the 50th year of the term of protection. This means record companies will be obliged to pay 20% of their proceeds during the extended period into the session fund. ?Â
  • A prohibition on producers from making any deductions from additional royalties due to the performers during the extended period. (“clean slate provision”). ?Â
  • A provision that allows for the rights in a recording to revert back to the performer if the record company fails to exploit the music track during the extended period. (“use it or loose it” provision). ?Â
  • A work of co-authorship has been re-defined as a musical composition with words where the authors of the music and the lyrics have collectively created a work. s10A. ?Â
  • Copyright in a work of co-authorship will expire 70 years after the death of the last surviving author. s12(8). ?Â
  • An extension of the period of protection for a sound recording that has been made available to the public from 50 to 70 years. s13A. ?Â
  • An extension of the duration of a performers rights in a released sound recording from 50 to 70 years.
  • The rights under 191 HA and 191HB are transferable on the death of a performer.

S191 HA

“use it or lose it”

  1. Where a performer has assigned the reproduction and distribution rights in a sound recording to a producer, the performer may serve notice to terminate such an assignment on the expiry of the 50 year period if the producer has failed to sell the sound recording sufficiently or to make it available online.
  2. If at the end of the 12 month notice period the producer fails to exploit the recording, the agreement terminates, the producers copyright in the sound recording expires and the right to terminate cannot be waived by the performer.

Where copyright in a sound recording has expired due to the exercise by the performer of the rights conferred under the new s191HA, the responsibility for payment of equitable remuneration should be discharged by the person who plays the sound recording or communicates it to the public and not the producer.

S 191 HB

 “session funds”

Where a performer has assigned the reproduction and related rights to a producer in consideration for a one off payment, the performer is entitled to receive a yearly payment at the end of the 50th year until the expiry of the copyright in the sound recording.

The producer or the exclusive licensee is obliged to pay to a collecting society for distribution to the performer, 20% of the gross revenue received for sales and downloads of the sound recording.

The proportion of the annual payment that will be received by the performer is not specified in the legislation, it is to be distributed in line with rule of the collecting society.

There is also an option for the performer to obtain from the exclusive licensee or producer in relation to ascertaining the amount of the annual payment, disputes regarding the sum may also be referred to the Copyright Tribunal by the performer.

The “clean slate provision”

If the performer is entitled to recurring payments subject to the assignment of rights, the producer is prohibited from deducting sums from such payments during the extended period (providing there are no provisions in the agreement allowing for such deductions.)

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