COPYRIGHT
shiſt ed slightly from rights owners towards the individual and consumer, but that it could have been worse.
“As we are part of the EU, the changes are not as radical as the government would have liked,” he says.
Twenty more years
At the same time as the government is seeking to seize power from copyright owners, it is trying to claw some of it back for them—in the world of sound recordings and performers’ rights, at least. T e government plans to implement new regulations, in line with the EU Directive 2011/77, which will extend copyright in these areas from 50 to 70 years.
Artists including Cliff Richard have lobbied hard for these changes, as their 50-year copyright is set to expire in their lifetimes. If adopted, the regulations mean that from November 1, 2013 musicians and performers can be safe in the knowledge that they cash in on their success for an extra 20 years.
“T is represents a huge grab of property from the public domain,” says Kaye. “T ere are oſt en accusations of theſt in the IP world, but
this would be stealing from the shared public culture and it will harm being able to develop innovative services.”
T e 20-year extension is not as simple as it looks. “Some interesting things happen when you hit the 50-year mark,” says Sarah Byrt, partner at Mayer Brown LLP. “Namely, that if the record company is not issuing suffi cient quantities of music—whatever that means—or making the record available to the public, the performer can warn the record company that it is not doing what it should to exploit the record.”
At this point, the record company has 12 months to make use of or lose the copyright—the changes have been nicknamed the ‘use it or lose it’ right. If a record label fails to produce enough hard copies or downloads, the copyright contained in them would expire and the performer’s right would go back to the artist, who could exploit it as he or she wishes.
Byrt says: “What will be interesting is what is defi ned as ‘suffi cient quantities’. T is may require some evidence of physical sales, which is how the EU directive reads, but this will be diffi cult with the increasing shiſt to an online era, especially with high street music stores going out
of business. It could be easy to meet the online criteria, but offl ine will be tricky.
“T e test should be fl exible and the threshold should be fairly low but it’s an interesting question and it will be interesting to see how the courts—if they have to—will defi ne suffi cient quantities,” she adds.
T e result is that more economic power could shiſt towards performers. Equally, record labels will want to exploit potentially lucrative music for another 20 years. Byrt says it will be interesting to see how these rights will be negotiated in the future, adding that the practical questions will need ironing out before it becomes clearer what the state of play will be.
Indeed, there are many uncertainties about the 20-year extension. In a similar fashion, there are a number of unanswered questions concerning the nine defences to copyright. Rights owners will be keen to see how both changes play out, if they are approved, and how they should alter their strategies for dealing with them.
While activists including Kaye are keen to suggest some of the changes are a long time coming, it may be just as long again before we know what eff ects they will actually have.
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Trademarks Brands and the Internet Volume 2, Issue 2
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