As the representative body of composers, songwriters, music publishers and their collecting societies in the UK, British Music Rights welcomes the Staff Working Paper of the European Commission reviewing the acquis in the field of copyright and related rights, and the underlying objective to address areas not yet fully harmonised. Our main interests in this review relate to:

I. Criteria for calculating the term of protection in the musical sector. We strongly support the conclusions of the Commission regarding criteria for calculating the term of protection in the musical sector, i.e. that "it would seem appropriate to clarify the criteria for calculating the term of protection in the musical sector for example by considering the introduction of a similar approach as for film works." We expand on this point later in this submission.

II. "Exhaustion of rights." We agree with the Commission's conclusion on "exhaustion of rights", i.e. that it would not be appropriate to change the current system of community exhaustion in view of its common recognition and approval in all areas of intellectual and industrial property.

III. Ownership of copyright. The composers and songwriters we represent are concerned that the Anglo - American approach regarding works made in the course of employment should not be considered as standard of harmonisation throughout the European Union.

IV. Awareness and media literacy. In addition to the points raised in the Staff Working Paper we suggest that awareness and media literacy also fall within the remit of Commission responsibilities and outline in this paper our involvement in a pan European Education project. We welcome the opportunity to share the UK experience with this project (see note 1).

Furthermore we would stress that Enforcement is a key element of the copyright framework. Whilst we welcomed the adoption of the Enforcement Directive earlier this year, it was a missed opportunity to harmonise criminal sanctions. We trust that the forthcoming Framework Decision on criminal sanctions will address this.

I. Criteria for calculating the term of protection in the musical sector - "Joint Works"

We strongly support the Commission's conclusion that the objective of the Term Directive to harmonise the term of protection throughout the Community has not been completely met in respect of literary and musical works which are written specifically for use together (e.g. the words and music of a 'song').

In some Member States, such works are regarded as works of joint authorship where the term is calculated from the death of the last surviving author (e.g. France, L. 123 of the French Copyright Act); in other Member States, however (such as the UK) these works are considered to be completely separate with the consequence that the term for each work (the literary work and the musical work) is calculated independently according to the death of each individual author. This has led to a disparity in the term of protection throughout the Community.

This disparity translates into complexity in terms of the licensing of European copyright works. Currently the collecting societies which represent the composers and authors of musical works and their associated lyrics administer European works in their own territories through reciprocal representation agreements. The disparity in the term of protection as outlined above means that an assessment is required as to whether a work used is a co-written work where the individual contributions are distinguishable as opposed to works of joint authorship, i.e. a work of collaboration of two or more authors in which the contribution of each is not distinct from that of the other(s) (see note 2). The term for the latter would, in the UK at least, be calculated from the death of the last author in any event, triggering the question which territories class such works as 'joint' works with the result that the lyrics and music are in copyright and which works are treated separately where one part will be in the public domain. In addition, the increased cross border use of works highlights the need for harmonisation in this area.

Also, the current treatment of co-written works such as songs or compendiums with contributions of various authors is in some countries, e.g. in the UK, inconsistent with the approach regarding films, already harmonised throughout the European Union.

Therefore, in order for composers and authors (and more particularly their estates) to license the use of their copyright works effectively throughout the Community this inconsistency in the calculation of term requires rectification. Music composers, authors, publishers and their collecting societies therefore welcome the Commission's proposal to clarify the criteria for the calculation of the term of protection in this respect, perhaps by the introduction of a similar rule as for film works (Article 2 (2) of the Term Directive), by introducing a respective amendment to the Term Directive.

II. Exhaustion of rights

We welcome the Commission's conclusion not to change the system of Community exhaustion. This accord with the conclusions on trade marks following wide-ranging discussions and research on international exhaustion in the European Parliament, the Council and the Commission in 2001; the arguments put forward then apply also mutatis mutandis in the area of copyright (see note 3).

III. Ownership of copyright

Whilst we welcome the Commission's proposal to analyse further the issue of initial ownership of rights, we suggest that UK composers and songwriters should be part of any research into the impact of the Anglo-American concept of works made in the course of employment (see note 4) and works made for hire (see note 5) respectively (see note 6). Any deviation of the first ownership of copyright represents a distortion of the basic principles of European copyright whereby the author is the first owner. The author not only looses control of the use and subsequent re-use of his work, he will also find it difficult in practice to exercise the moral rights he still owns in theory.

IV. Awareness

One of the key aspects not expressly mentioned in the Staff Working Paper relates to copyright awareness and media literacy and we would like to work together with the European Commission on initiatives to raise awareness of the value of copyright. The music industry recognises that as well as offering legitimate solutions for accessing music online, it must also work at grass roots level to increase copyright awareness and instil in young people an understanding of its value for creativity and innovation.

British Music Rights is a member of the European Music Copyright Alliance (EMCA) which is a collection of organisations across Europe with an interest in copyright awareness. EMCA is launching an educational initiative, targeting students from primary to middle schools across Europe. It aims to help young people to understand what intellectual property is, why it is important and how it can help to promote future artistic creativity across Europe and all over the world.

As the UK partner, British Music Rights is currently developing a teaching pack, in conjunction with a respected UK educational agency which will be launched in schools in November 2004 under the 'Respect the Value of Music' banner. We would be happy to provide more details if considered helpful (see note 7).

Notes

1. C.f. www.bmr.org and www.emcaweb.net

2. Section 10 (1) of the UK Copyright Act , the Copyright Design and Patents Act (CDPA) 1988

3. Point 3.6. page 16

4. UK Copyright, Designs and Patents Act 1988 section 11 (2)

5. Section 101 of the US Copyright Act of 1976

6. Contact: British Academy of Composers and Songwriters: www.britishacademy.com

7. British Music Rights has recently been invited to join the OFCOM, Media Literacy Research Forum which has been designed to help the regulator ensure that its research into media literacy issues is as comprehensive and robust as possible.