UK: Extending the Term: Should the UK Recording Industry Have New Obligations as Well as New Rights if the Copyright Term for Sound Recordings is Extended?

Last Updated: 3 April 2006
Article by Ben Challis, Barrister-at-law

In this article Ben looks at the current moves by the UK’s recording industry to push for a Europe wide extension in the term of copyright for sound recordings - from fifty years to ninety five years. But Ben asks if this is the time for a complete overhaul in the way copyrights are owned and suggests that any change in term should only be made with additional provisions to protect both the customers and the creators of recorded music.

Front page news in the UK trade magazine Music Week on the 4th March 2006 was the headline Time for Action’ launching a major campaign under the ‘Extend The Term!’ banner, calling on the UK Government to take action over extending the term of copyright for sound recordings from the current term of fifty (50) years to anything up to 95 years, to mirror protection in the USA. The UK Government has already responded to industry calls by appointing Andrew Gowers, formerly editor of the Financial Times, to review issues in intellectual Property. Mr Gowers has now issued a call for evidence relevant to his review. At the top of his list of the twelve areas of IP he wishes to address in his review is the current term of protection for sound recordings including raising the issue of whether or not an extension to ninety five (95) years, to mirror protection in the US, is appropriate; Gowers has asked for:

  • evidence that a change in term would impact on investment, creativity and consumer interest
  • evidence that extended terms in other markets has had an impact on investment, creativity and consumer interest
  • whether any alternative arrangements could accompany any extension of term
  • whether any change should be retrospective or just cover new works

But one of the problems for the record industry in Europe is comparison with activities of the major labels (SonyBMG, Warners, EMI and Universal) in the USA: In 2003 the major labels and three retailers were forced to settle for $143 million dollars for price fixing CDs; the majors are now embroiled in a ‘payola’ scandal after being investigated by New York attorney general Eliot Spizer: Both SonyBMG and Warners have already settled in this matter (paying over $10 million and $5 million respectively) for illegal ‘pay for play’ activities - this from the companies whose trade body, the Recording Industry Association of America (RIAA) warns Americans about the illegality and immorality of downloading without permission – and bangs the drum about copyright theft! And to add to major labels woes, there is now a new federal investigation looming about the pricing of music downloads. Finally the majors are still suffering from the ongoing fall out from the SonyBMG ‘rootkit’ fiasco and other consumer resistance to heavy handed and sometimes plain daft digital rights management initiatives (see

Record company practices have recently been scrutinized to a far greater extent than they had previously: Prince’s action in famously painting the word ‘slave’ across his face in reaction to his contract terms with Warners and George Michael’s withering comments on his 90s relationship with Sony give some indication of the perceived contractual and financial imbalances created by record deals. Having heard the complaints of artists, California State Senator Kevin Murray says this about US recording industry practices: "Artists …. see themselves as victims of an indentured servitude system designed to keep them perpetually indebted to the companies who also own the product of their labor. Some artists expressed gratitude for the initial investments made by the record companies in their talent, but feel cheated by their meager share of the proceeds when the gamble pays off. One artist's representative went so far as to accuse the record companies of running a continuing criminal enterprise"

In the UK it has been the decisions of the law courts starting with A Schroeder Music Publishing v Macaulay in 1974 through to ZTT Records Ltd & Perfect Songs Ltd v Johnson (1988) and Silvertone v Mountfield (1993) that have unscrambled unfair and often iniquitous contracts between artists and labels, using the common law doctrine of unreasonable restraint of trade and concepts such as undue influence and inequality in bargaining power to try level the playing field. In the US where no similar body of case law had developed it has been left to organizations such as the Recording Artists Coalition and politicians such as Senator Murray to campaign to improve the lot of artists.

However, it is perhaps the third point that Mr Gowers raises that must alarm the majors most: Gowers asks whether any alternative arrangements could accompany any extension of term. Whilst Music Week acknowledges concerns over "artist’s influence and their ability to control how their music is exploited many years after it was created", Music Week also argues that the "extension of copyright term’ must be a priority issue over the coming months". This seems a very ‘label’ friendly position and if I were an artist or an artist manager I think I might take a very different view on this and indeed have different priorities. Fortunately artists do now have a voice with the globally active Music Managers Forum: Whilst the MMF are supporting a copyright extension and are looking to increase the term sound recording copyrights to seventy (70) years after the death of the last surviving performer their position is not that simple and the MMF have produced a Policy Statement regarding possible extension of the term in sound recordings.

The Policy, written by MMF copyrights and contracts sub-committee chairman David Stopps, calls for two new provisions in copyright law: The MMF have suggested that any assignment to a record label should be for a limited period of time – twenty five years – after which the rights revert back to the artists. Stopps suggest that ‘after 25 years the copyright will come back to the original performers and they can put out on their own label or exploit it as they wish". If this could be linked in some way to artist recoupment then this would certainly be an interesting move forward. Coupled with this is the MMF’s ‘use it or lose it’ policy whereby copyright holders who did not make a work available for public access for a period of (say) 2 years would see the copyright automatically reverted to the creators and performers who created it. The MMF say that this change would enhance competition and cultural diversity and bring great benefit to creators, performers and consumers.

So what might be some relevant suggestion to Mr Gowers?

  • That there should be an extension of the copyright term in sound recordings to say seventy years from the date of recording. It is possible to argue that this should go further - for seventy years after the death of the last performer on a recording. This would then mirror other copyrights.
  • And a similar extension of the term for performers rights (in live recordings – again to seventy years or life plus seventy years)

But if we want to protect and encourage our creative community - the very people who actually make sound recordings - then perhaps any change in copyright term might be accompanied with some new provisions:

  • an automatic and irrevocable re-assignment of copyright in sound recordings to the recording/performing artist(s) after 25 years and
  • Earlier return of copyrights to recordings artists (and indeed songwriters) where the work is not commercially exploited by a record label (or a music publisher).
  • A legal recognition of recoupment by artists in terms of a return of ownership of masters (including promotional videos and long form audio-visual recordings of live events) or joint ownership and/or joint control with labels when an artist recoups costs and/or investment.
  • a fiduciary duty placed on labels to account to the recording artist(s) on a regular basis for an equitable share of all revenues for the life of copyright / term and/or
  • An obligation placed on record labels to account transparently to artists and account on source income.
  • The automatic return of copyrights where there is a failure to account.
  • Criminal sanctions (as with copyright infringement) for directors of companies for failure to account to original authors, composers and performers.
  • The automatic return of copyrights in the case of the bankruptcy/liquidation of a company

The review of copyright extension is imminent and both the creators of recorded music and the consumers of recorded music need to make their aspirations known to Mr Gowers and government. The recording industry certainly will. As a creative industry, perhaps the general feeling is that the proposed extension in term should be a good thing and should be supported – within reason. But if the campaign ends up as one which is purely designed to suit the needs to the major record labels then any extension in term might well have the very reverse effect to what the government might intend to achieve – which surely is a well funded, creative, vibrant and healthy music industry in the United Kingdom and indeed elsewhere.

First published on Music Law Updates © 2006 Charming Music Ltd

Abridged version republished with permission

Murray, K (2003) Recording Industry Practices The Recording Artists Coalition website at

A Schroeder Music Publishing v Macaulay (1974) 1 WLR

Panayiotou v Sony Music Entertainment (UK) Ltd (1994) EMLR 229

Silvertone v Mountfield in (1993) EMLR 152

ZTT Records Ltd & Perfect Songs Ltd v Johnson (1988) EIRP 175

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.