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Guidance

Copyright in sound recordings


Published 18 August 2014

Contents
1. Overview
2. How long copyright in sound recordings lasts
3. Performers` rights in sound recordings
4. EU Directive 2011/77/EU
5. Other performers` rights in sound recordings

1. Overview
Copyright in a sound recording is separate from any copyright in the words and music contained
in the recording. The first owner of the copyright in a sound recording is usually the record
producer.

The composer of the music in a sound recording will be the author of the musical work and will
usually own the copyright in that music. The lyrics of a song are protected separately by
copyright as a literary work and will usually be owned by the person who wrote them.

Sound recordings do not have to be original works but they will not be new copyright works if
they have been merely copied from existing sound recordings.

2. How long copyright in sound recordings lasts


The length of term of copyright in a sound recording depends on whether or not it has been
published (released) or has been communicated to the public (for example, played on the radio)

if a recording is not published or communicated to the public, copyright lasts for 50 years
from when the recording was made
if a recording is published within 50 years of when it was made, copyright lasts for 70
years from the year it was first published
if a recording is not published within 50 years of when it was made, but it is
communicated to the public, copyright lasts for 70 years from the year it was first
communicated to the public
if a recording is first communicated to the public within 50 years of when it was made
and is then published at a later date (but within 70 years of its first communication to the
public), copyright lasts for 70 years from the year it was first published
3. Performers` rights in sound recordings
A sound recording will also contain performers` rights, such as:

reproduction right
distribution right
rental right and lending right
making available right
right to equitable remuneration

How long performers` rights in a sound recording last is calculated slightly differently to the
length of the term of copyright:

if a recording is not published or communicated to the public, the performers` rights last
for 50 years from when the recording was made
if a recording is published or communicated to the public within 50 years of when it was
made the performers` rights last for 70 years from the year when the earliest of these
events first occurs

4. EU Directive 2011/77/EU
In September 2011 the EU approved a directive which extended the period of protection from 50
to 70 years for copyright and performers` rights in most published sound recordings. This change
came into effect in the UK on 1 November 2013.

The extension of the term of protection applies only to those sound recordings that were in
copyright on 1 November 2013 and to any sound recordings made after that date. The extended
period of protection does not apply to those sound recordings where copyright has already
expired.

5. Other performers` rights in sound recordings


5.1 Non-featured performers fund (session fund)

A non-featured performer is one who has transferred their performers` rights to the producer of
the sound recording in return for a single payment. After the 50th year following the publication
of a recording, a non-featured performer is entitled to receive an annual share of a sum equal to
20% of gross revenues from the physical and online sales made of their recordings in the
previous year.

The revenue must be paid by the producer of the sound recording to a collecting society who will
pay to the performer, after deduction of normal administrative costs, an equal share of the
monies. The performer must be a member of the collecting society in order to collect the money
to which he is entitled. The amount paid to each performer will depend on the number of non-
featured performers in the sound recording. A performer may not waive his right to this
remuneration.

In order to find out the amount of the annual payment that they are entitled to or to secure its
distribution by the collecting society the performer is entitled to request that the producer
provides any relevant information which is in his possession. The request must be in writing and
the producer must provide the information within 90 days. A performer may apply to the county
court (or the sheriff, in Scotland) if the producer does not comply with the request within the
time limit.

5.2 Use it or lose it

If, 50 years after its publication, the producer of a sound recording is not making the recording
available for sale, both physically and online, in sufficient quantity, a performer who has
assigned his or her rights in the recording to the producer may give written notice to the producer
that he or she wishes to reclaim their performers rights in the recording. If, after one year from
the date of the notice, the producer has failed to make the recording available for sale, both
physically and online, the performer`s rights will revert to the performer and the producers
copyright in the recording will expire.

It isnt necessary for multiple performers in a sound recording to act together. A single performer
may exercise the use it or lose it right independently. Before a performer can exploit the
recording they must ensure that they have the necessary permission from the other performers in
the recording as well as the owners of the copyright in the music and any lyrics.

For a performer to be able to issue a notice to the producer he must have assigned to the producer
his reproduction, distribution and making available rights or his performers property rights.

Where, as a result of the performer exercising the use it or lose it right, the producers copyright
in a recording has expired, the performer will have the right to claim royalties (equitable
remuneration) for certain uses of the recording, namely playing in public or communication to
the public, from a person who uses the sound recording in that way. This replaces the right to
claim from the producer equitable remuneration for exploitation of the sound recording. This
right will be unenforceable if the producers copyright in the sound recording has expired. This
right to remuneration against the user of the sound recording will apply only in the specific
circumstances described in this section.

5.3 Clean slate

Any contract relating to the exploitation of a sound recording that was in force on 1 November
2013 and expires at the end of the period of copyright term shall continue in force until the end
of the period of protection, including where that period was extended by the EU Directive.

Where a performer assigns their rights to a producer in return for recurring payments (royalties)
it is often the case that the agreement will include provision for the producer to reclaim over the
period of the contract any advance payments made to the performer. In such cases, after the 50th
year following publication of the recording, the producer must make(royalty) payments to the
performer in full, regardless of any provision in the agreement which entitles the producer to
withhold or deduct sums from the amount payable.

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