23 August 2004
Elvis Presley’s That’s All Right recently made the top three in the UK singles chart on the 50th anniversary of its first release. This anniversary also has major implications for the copyright in the sound recording of the track; it will expire on 31 December 2004. From 1 January 2005, third parties will be able to press and sell copies of this recording without infringing copyright.
In the UK, copyright in a sound recording lasts for 50 years from the end of the year in which the sound recording was made. Or, if it was released during that period, fifty years from the end of the year of release. Therefore, over the next few years, we will see sound recordings from the rock and roll era and, later, sound recordings from the 1960s – including those made by The Beatles, The Rolling Stones and early Motown records – fall into the public domain. This could lead to more use of these sound recordings on compilations. It could also lead to their increased use in advertising campaigns or as ringtones. Are we to see Blue Suede Shoes being used by footwear manufacturers? And, looking further ahead, could we see the original sound recording of I Just Called To Say I Love You being used as a ring tone?
Copyright protection enables the owners of copyright to receive income during the life of the copyright. The length of protection varies depending on the type of copyright work. Copyright works such as literary works – ie the lyrics of songs – or musical works – the song underlying the sound recording – enjoy protection for the life of the author, plus 70 years from the end of the year in which the author died. This gives songwriters a far longer period of protection than owners of copyright in sound recordings, where the copyright can expire during the lifetime of the performer featured on a sound recording. In contrast, copyright in films expires 70 years from the end of the year in which the last of four persons connected with the film dies.
So, what can an artist do if the copyright on the sound recording expires? Under UK copyright law, performers have statutory performers’ rights, which include the right to authorise the distribution of copies of a recorded performance. The rights, however, expire at roughly the same time as the copyright on the sound recording.
Creators also have certain moral rights, including the right not to have one’s work subject to derogatory treatment. However, this may not apply if a sound recording is released by a third party in its original condition.
If a performer is also a songwriter they might have some control over the exploitation of their musical works. A third party who wants to release a sound recording will need consent from the owner of the copyright in the underlying literary and musical work. A songwriter who retains rights in their works can prevent such exploitation.
However, if the songwriter has transferred their copyright, the new copyright owner may have no objection to third-party exploitation of the musical works. Performers who have recorded works written by third parties have even less control over how third parties can exploit their works.
A further complication is caused by the fact that the term of protection for sound recordings is not standard throughout the world. The 50-year period applies throughout the EU, but there is a longer period of protection in countries such as India and Australia. In the US, copyright can last for at least 95 years from first publication, or for the life of the artist plus 70 years.
There have been calls for the European period of protection for sound recordings to be extended. Industry bodies have asked that the discrepancy between the period of protection in the UK and the US be eliminated. However, in a European Commission staff working paper on copyright and related rights, the Commission stated that the term of protection does not cause particular concern. Rather ominously, it also stated that it could be argued that the term of protection should be reduced.
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