In a nod to discussions about artist and performer rights currently underway in our own backyard, the new year has so far given us at least one possible attempt to work around the EU’s “use it or lose it” clause via EU Directive 2011/77/EU, known as the Term Extension Directive. Passed in 2011 by the Council of the European Union, the Directive extends the copyright term of sound recordings from 50 to 70 years in the EU.
As first reported by Variety, on December 29, 2019 a user uploaded to YouTube 75 rare and previously unpublished Rolling Stones recordings. The recordings were made public for approximately 24 hours before being hidden by the user on January 1, 2020. The YouTube user account lists an email address for ABKCO, a record label and music publisher that owns and administers much of the Rolling Stones early material. This led some to suspect that the uploads were a quiet attempt to make the recordings available to the public before falling under the Term Extension Directive’s “use it or lose it’” clause, or perhaps, to allow the label to make use of the option to create a copyright term of 120 years under this legislation.
The Term Extension Directive seeks to address the fact that, for performers in the EU, the “term of protection of 50 years applicable to fixations of performances often does not protect their performances for their entire lifetime”, resulting in what the directive describes as an income gap at the end of a performer’s life. It does this by not only extending the copyright term for sound recordings from 50 to 70 years after fixation, but also by providing performers with access to what has come to be referred to as a “use it or lose it” clause providing them an avenue to regain access to sound recordings that are under the control of a producer (Directive 2001/77/EU, Art. 1(2)).
According to EU Directive 2006/116/EC, the “rights of producers of phonograms shall expire 50 years after the fixation is made”, and when a sound recording is lawfully published within this original 50 year term, the rights extend to 70 years from the date of first publication, via the Term Extension Directive (potentially extending the producer’s copyright term to a total of 120 years). However, the Term Extension Directive also adds the following:
“If, 50 years after the phonogram was lawfully published or, failing such publication, 50 years after it was lawfully communicated to the public, the phonogram producer does not offer copies of the phonogram for sale in sufficient quantity or does not make it available to the public, by wire or wireless means, in such a way that members of the public may access it from a place and at a time individually chosen by them, the performer may terminate the contract by which the performer has transferred or assigned his rights in the fixation of his performance to a phonogram producer”.
Here, performers are given the option to request termination of copyright, extinguishing the rights of the producer if they do not make the material available for sale within a year of receiving a notice of contract termination from the performer. As of 2018, this provision had not yet been invoked, which leads us to ask what it means to make a sound recording available to the public, and if a 24-hour public upload to a digital streaming platform fulfils this requirement. What did ABKCO have in mind when deciding to upload to YouTube these previously unpublished recordings on the final day of 2019?
Meghan Carlin is a first-year student at Osgoode Hall Law School. With her time spent working in music licensing for film and television informing her legal studies, Meghan also acts as a 1L rep for the Osgoode Entertainment and Sports Law Association.