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 producer’s copyright in the recording will expire.
It isn’t 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 performer’s property rights.
Where, as a result of the performer exercising the use it or lose it right, the producer’s 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 producer’s 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.