|Patiently Waiting to Exercise the Use It or Leave It Provision|
Tuesday, 28 October 2014
French Minister of Culture Fleur Pellerin has presented a bill which would implement Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of copyright and certain related rights, and Directive 2012/28/EU on certain permitted uses of orphan works.
Extending Length of Protection for Music Performers and Music Producers to 70 Years
Directive 2011/77/EU amended the term of copyright protection for performers in the music field from 50 years to 70 years after the first communication of the performance to the public. The Commission wanted to bring the term of protection of these performers “more in line with that of authors” (at 3.3.6), considering that, generally, people are now living longer. If the performance has been fixed other than in a phonogram, the term of protection was not modified by the Directive.
In practice, performers rarely, if ever, retain their rights as they assign them to a phonogram producer, and Directive 2011/77/EU also amended the term of copyright protection for producers of phonograms. Their rights are protected by Directive 2011/77/EU for70 years after the fixation of the phonogram or its lawful publication, so that they could benefit from additional revenue from the sale of music, particularly online.
Directive 2011/77/EU also gave performers the rights to regain their rights signed over to record producers if the producers failed to market the recording. This is sometimes called the 'use it or lose it' provision. However, performers first have to notify the producer of their intent to regain their rights, and wait for a year before terminating the rights, if the producer does not market the recording again.
France has not implemented Directive 2011/77/EU yet, and is thus late to implement it, as this should have been done by November 1st, 2013, according to article 2 of the Directive. As of now, the rights of the performers are protected in France for 50 years, under article L. 211-4 of the French Intellectual Property Code (FIPC). As an aside, performers also have perpetual moral rights under article L. 212-2 of the L.212-2 FIPC. Article 1 of the bill would modify article L. 211-4 FIPC and extend protection to performers to 70 years.
New “Use It or Leave It” Provision
Article 2 of the bill would also create an article Art. L. 212–3–1. – I in the FIPC, which would implement into French law the “use it or leave it” provision of Directive 22201111/77/EU. After 50 years of the 70 years of protection provided to him by law, a performer would have the right to notify the producer of his intent to cancel the contract, if the producer “does not offer for sale copies of the phonogram record in sufficient quantity or does not make them available to the public so that everyone can access them from a place and at a time individually chosen.“
One wonders if such option will be really helpful to performers. New technologies are likely to be used to listen to music in the near future, but even as of today, it is quite easy for a producer to make a particular work “available to the public” online. However, there is such a plethora of music works available online that it seems that only the ones which are carefully marketed by producers, or the works of a few arch-famous performers, are bought in such quantities that the performer may enjoy a peaceful and lucrative retirement.
The bill would also implemented Directive 2012/28/EU on orphan works by creating a new chapter in the FIPC dedicated to orphan works. Article L. 113-10 of the FIPC already defines an orphan work as a protected work which has been published, but the rights holder for which cannot be identified or found despite diligent, proven and serious research.
Under the new law, publicly accessible libraries would have the right to digitize orphan works belonging to their collections and make them available to the public. This option would also be also open to museums, archives, and custodians of film or audio heritage, educational institutions, and public broadcasting organizations.
This could only be done for cultural and educational purposes and should not provide any economic or commercial advantage to these organizations. They could, however, ask users for financial contributions toward the costs of digitization and generally making available the works. Organizations will have to include the names of the rights holders, if identified, and respect their moral rights. The French Minister of Culture would transmit to WIPO the result of the research made by the organizations to identify the authors of the orphan works.
Posted by Marie-Andree Weiss at 22:27:00
Labels: Directive 2012/28/EU on certain permitted uses of orphan works, French copyright, Orphan works, performers' rights