UK: Copyright Term Extension Update

Last Updated: 28 January 2014
Article by Michelle Brown

On 1 November 2013 changes were introduced into UK copyright law which have a material impact on the music industry.

The Copyright and Duration of Rights in Performances Regulations 2013 (the "Regulations") are being introduced to comply with a 2011 EU Directive.

The extension of the copyright term for sound recordings had been rejected by Gowers in his 2006 Review on Intellectual Property and also criticised in the Hargreaves Review in 2011 but, despite these criticisms the UK Government voted in favour of the Directive.

The key changes being introduced are:

  • An extension to the period of copyright and performers' rights in sound recordings from a 50 year to a 70 year period;
  • Windfall provisions which stand to benefit performers, including session musicians in some cases, during the extended term of rights; and
  • Changes to the way in which copyright for jointly written music and lyrics will be calculated, which will result in the copyright reviving in some "public domain" works.

Extension of copyright term & performers' rights in sound recordings

Provided a sound recording has been released in a physical format or played in public or "communicated to the public" (e.g. by way of broadcast or being made available as a download or stream) in the first 50 years after it was made it will potentially qualify for the new longer period of copyright protection. The 70 year period will run from the physical release or, if that didn't occur in the first 50 years, from the first act of playing in public or "communication to the public".

The term of performers' rights has also been extended to a 70 year period provided the performance was released in the form of a sound recording in the first 50 years from the performance being given. The term of performers' rights is calculated on a slightly different basis to the copyright term. The 70 year period runs from the first to occur of physical release, playing in public or "communication to the public", which could technically result in the performers' rights expiring before the copyright.

These changes follow years of lobbying by record companies and also artists such as Paul McCartney and Cliff Richard, who did not want to see lucrative sound recordings from the 1960s fall into the public domain. However, the changes won't revive any copyright or performers' rights in recordings if these rights have already expired. The extension only stands to benefit recordings first released on or after 1 January 1963. This excludes a number of The Beatles and Cliff Richard's earlier recordings. It remains to be seen if labels are able to argue successfully that re-mastered recordings give rise to a new copyright.

Windfalls for performers during extended copyright term

During the extended period of copyright there are a number of new windfalls for performers, some of which will stand to benefit session musicians as well as featured artists.

"Use it or Lose it"

In certain circumstances performers who have granted record labels the right to release their recordings will now be able to terminate the grant of rights as a result of non-exploitation. The Regulations make clear that record labels cannot get performers to contract out of these rights.

The right arises if the copyright owner has failed to meet "one or both" of the following criteria:

  • Offering copies of the recording for sale "in sufficient quantities"; and
  • Exercise of the so-called "making available" right (i.e. making the recording available to the public by electronic transmission in such a way that members of the public may access it from a place and at a time chosen by them) which would include making the recording available for online or mobile streaming or download.

"Sufficient quantities" was not defined in the Directive and the Regulations define it as meaning enough to "satisfy the reasonable requirement of the public for copies" of the recording.

The wording of the Regulations is not very clear but the reference to "one or both" could be understood to mean that the labels will have to ensure that both physical and digital distribution have occurred in order to prevent this right arising. Labels are given a period of one year from receiving notice from the artist in order to "cure" this failure and it is clear that to do so they must ensure that both these types of exploitation must occur.

There is also an ongoing right to terminate (again after a one year notice and cure period) if the recording subsequently ceases to be exploited by such means, so the record labels cannot rely on a one-off physical and digital release to preserve their rights.

If the right is successfully invoked "the agreement" is stated to terminate and the copyright in the recording is stated to expire.

These provisions do not sit very happily with the way in which the music industry operates for a number of reasons. Notably:

  • The Regulations refer to a right to terminate "the agreement" - presumably meaning the agreement under which the performer had assigned the applicable rights. This would clearly be problematic in the context of an exclusive recording agreement under which the artist has granted a label rights to multiple sound recordings. It is assumed that the intention is only to allow termination of the rights granted on a recording by recording basis, although this is not expressly stated.
  • There are generally multiple performers on a recording – both featured and session. There is nothing in the Regulations (or indeed the Directive) to suggest that the performers need to act together or that the copyright would only expire once all the relevant performers had terminated their agreements. The UK Intellectual Property Office ("IPO) was clearly concerned about this during the consultation period. It is arguable that once one performer has terminated his or her grant of rights the record company's copyright expires. However, the ongoing performers' rights would mean that nothing could be done with the recording unless all the other performers also terminate the grant of rights to the record label and work together to agree how the recording may be exploited. Unless this happens the recording could become un-exploitable. Also, once the copyright term has expired the 20% of revenue fund which is referred to below will cease to apply to that recording.

20% Fund for Performers with no ongoing royalties

Performers who transferred their performance rights in a recording in return for a one-off payment (i.e with no ongoing royalty entitlement) will now stand to benefit from a new fund during the extended copyright term.

This is a major windfall for session musicians and will sit alongside their existing right to share in equitable remuneration from the public performance of the recordings on which they performed. The current owner of copyright in the recording (or their exclusive licensee) will be responsible for paying 20% of the "revenues" earned during each remaining year during which copyright is protected and this will be collectively managed. We understand from the IPO that PPL, which already collects public performance income on behalf of both record labels and performers, is expected to take on this role.

The record companies will be obliged to pay 20% of the "revenues" earned during each year of the extended term (i.e. the final 20 years of the term) into a fund for these performers. They cannot ask performers to contract out of this entitlement. The relevant revenue for this purpose is that from the reproduction and issue to the public of copies of the sound recording and any "making available to the public", which will include revenues from streaming and downloads.

This 20% entitlement will be received as an annual payment and performers are given a right to request information from the copyright owner or exclusive licensee to establish their entitlement. In the event of disputes over the amount payable, performers can refer the matter to the Copyright Tribunal.

"Clean slate" Provision

For performers who do have a right to receive ongoing royalties, the Regulation provides that during this extended copyright period the payments must be "made in full, regardless of any provision in agreement which entitled the producer to withhold or deduct sums for the amounts payable". The Directive itself had referred to "advances" and "contractually defined deductions". It is assumed that these provisions are directed at wiping the slate clean in relation to un-recouped balances, whether of advances or recoupable costs, rather than the more general reductions and deductions which you would expect to find in customary royalty calculation provisions.

No right to modify existing contracts

The Directive also gave Member States the option of providing that contracts concluded before 1 November 2013, under which performers assigned rights in return for a recurring payment (such as a royalty) could be "modified" during the extended period.

UK record labels will be relieved to hear that the Regulations do not introduce provisions which allow performers to re-open the terms of their historic contracts. We are not aware of whether any EU Member States have introduced provisions of this kind and, if so, if they restrict this to contracts with some jurisdictional connection to their territory.

Harmonisation of term for co-written musical compositions

The new Directive also contains less well publicised provisions that are relevant to songwriters and publishers and affect the way in which duration of copyright is assessed in relation to musical compositions.

The provisions apply to musical compositions which were created by the collaboration of the composer(s) of the music and the writer(s) of the lyrics where these two elements were created to be used together.

These amendments have been introduced to ensure uniformity across the EU in the way in which duration of copyright in such music and lyrics is calculated.

Historically the UK assessed the duration of copyright in the musical work and lyrics separately by reference to the dates of death of their respective (last surviving) authors. The Regulations introduce the concept of works of "co-authorship" for such works. Although the music and lyrics continue to be protected as separate copyright works for all other purposes, for the purposes of calculating the term of copyright, the period will now run for 70 years from the end of the calendar year of death of the last surviving author of either element.

This change also applies to existing works of "co-authorship" (provided either words or music were still protected in an EEA State on 1 November 2013), with the result that it will actually revive rights in some musical works or lyrics which had previously expired.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.