British Music Rights (see note 1) represents over 50,000 composers, songwriters, music publishers and their collecting societies. Our response focuses solely on the harmonisation of the calculation of the term of protection for co-written works. As far as the term of protection of sound recordings is concerned we support further economic and legal review as to whether the EU 50 year term of protection on sound recordings should be extended to match the longer term of some of its global competitors to foster EU competitiveness.

We recognise that, in the absence of a harmonised rule, Member States calculate the term of protection for co-written works in different ways. As a result, in some Member States, part of the work falls into the public domain, whereas in others, the whole work still benefits from copyright protection.

In view of the uncertainties of the legal situation for right holders and users within the European Union and the complexities of the actual administration of co-written works we propose harmonisation of the calculation of term for co-written works, following the model provided by Article 2 para 2 of the Term Directive EC 93/98.

Specific responses to the consultation questionnaire:

52. What is approximately the percentage of works falling into the category of co-written works? Is this percentage increasing? Are there differences between Member States?

Unfortunately, the evidence held by both MCPS-PRS and individual music publishers is not stored in a way that makes it possible to extract meaningful statistics for the purposes of this consultation exercise. Notwithstanding the absence of appropriate statistics, we would like to take the opportunity to highlight the changing trends in the way songwriting royalties are being divided. MCPS-PRS is increasingly experiencing that works are being registered in such a way that each band member is treated as an equal joint author regardless of his contribution to either the music or the lyrics. Whilst the reason for this trend is likely to be contractual with the intention of avoiding potential litigation on ownership of copyright in the event that the band splits, this approach also has the benefit of avoiding the pitfalls of the UK’s "split copyright" (see note 2) regime and securing the maximum term of protection for the work as a whole.

Our specific concerns hence relate to back catalogue, older repertoire and specific genres, such as musical theatre and opera. We have now reached a period in time when parts of works will start to fall into the public domain in some Member States and as volumes increase, so will the administrative and commercial difficulties faced by collecting societies and music publishers.

53. When part of a co-written work falls into the public domain, to what extent will that affect its commercial exploitation (prices, availability, cross-border situations, etc.)?

In terms of MCPS and PRS calculating a fee for licensing (either a blanket licence or work-by-work basis) there is a limited impact on the royalty a song might command should either the words or music fall into the public domain. However, we recognise that MCPS has experienced resistance from some record companies which have refused to pay a royalty on works where only the words are protected.

As far as the collecting societies are concerned, one of the main problems faced relates to that of administration, rather than pricing. We have expanded our comments in response to Question 54 below.

Publishers of so-called "grand right" works such as musicals, operas and operettas which (apart from when performed as extracts) are excluded from the societies’ mandate do however experience problems relating to the commercial value of their repertoire when an element of a co-written work falls into the public domain. There is often a demand for a reduction in the percentage of box office paid as a royalty. For example, the BBC will often pay reduced royalties on partially copyright "grand right" works.

54. To what extent have you experienced or do you expect to experience difficulties due to the difference in the calculation of the term of protection of co-written works?

From MCPS’ and PRS’ point of view, the current lack of harmonisation across Europe means that royalties may be received from overseas societies when elements of a work are used in that territory which is protected due that particular co-written works regime. However, this might not be reflected in the UK. As there is no protected writer’s share to which the royalties can be allocated, the money has to be distributed instead across the relevant revenue stream.

On the other hand, UK societies are not able to reciprocate and remit royalties to overseas societies for the UK exploitation of an element of a song which is unprotected in the UK but protected elsewhere in Europe. This disparity is likely to grow as time passes and the contributions of more co-writers pass into the public domain in the UK.

From a music publisher’s perspective, the different terms of protection for co-written works across Europe creates further difficulties in respect of adaptations. The commercial market place can become confusing when different laws apply for such types of work. Arrangers do not recognise that in many countries a song is a single copyright work and that the publisher’s permission is needed.

For example, Puccini’s 'Nessun Dorma' from the opera 'Turandot' and 'O mio babbino caro' from the opera 'Gianni Schicchi' are both published by Ricordi and have probably more arrangements than anything else in the Ricordi catalogue. The musical element of these arias is public domain in the UK (notwithstanding that the libretto is in copyright) but protected in Italy where copyright in co-written works is indivisible. This means that an instrumental arrangement made in the UK without Ricordi’s permission is deemed legitimate in the UK but considered an infringement if made in Italy. Furthermore, an arranger may often add new words and a new title which requires additional effort in tracking as well as loss of revenue. Music publishers lose not only performing and mechanical income but revenue from the hiring of orchestral materials and the sale of sheet music.

This disparity of treatment by different countries is also a very difficult situation for authors or their heirs to understand or accept. Particularly for a work like a musical, opera or operetta the creation of this sort of piece depends on a collaborative effort in which the co-authors interact to alter and improve what has been written.

The individual elements are not created in isolation and are therefore truly co-created compositions.

55. To what extent do or will differences in the term of protection for co-written works result in or aggravate practical enforcement problems, including piracy?

Please see our reference to tracking issues above (Question 54).

56. Do you have any preference for a particular, harmonised rule on calculating the term of protection for co-written works? If so, please describe and explain why.

We would favour an approach similar to that used for the calculation of the term of protection for films (Article 2 para 2 of the Term Directive EC 93/98) under which the term or protection would run from the last to die of the composer and lyricist (or librettist) but their designation as co-authors would be optional. This would achieve harmonisation of term but would leave to Member States the question of the co-authors’ right to control the exploitation of elements of a work to which they have made no contribution.

Such an approach would allow the UK Government to implement the provision without making any change to the principle in UK copyright law that the words and music of a song are separate copyright works. At the same time, it would allow Member States elsewhere in Europe to retain the principle of indivisibility of copyright. Yet it would still improve the administrative difficulties currently being experienced by collecting societies and music publishers.

Any provision should make it clear that the term of protection for the co-written work as a whole applies even if one of the composites (i.e. words or music) is used separately. Different terms of protection for instrumental and vocal versions of the same work would be confusing for both rights holders and users.

Accordingly, we propose the following text being appropriate:

"The term of protection of operas, musicals and other dramatico-musical works and musical compositions and words (whether used together or separately) where the music and words were created each with the intention of use with the other shall expire 70 years after the death of the last of the following persons to survive, whether or not these persons are designated as co-authors; the author of the dialogue, libretto or lyrics and the composer of the music."

Notes

1. British Music Rights is the consensus voice of Britain’s composers and songwriters, music publishers and the UK collecting societies. The members of British Music Rights are the British Academy of Composers and Songwriters, the Music Publishers Association (MPA), the Mechanical-Copyright Protection Society (MCPS) and the Performing Right Society (PRS).
2. “Split copyright” in this context denotes that music and lyrics are treated as separate works