The Government has published its response to a consultation by the Intellectual Property Office on the extension of public performance rights to foreign nationals, recommending a “limited change” to how foreign performers (but not foreign producers) qualify for these rights.

We previously commented on this consultation here. It sought to address an imbalance in existing copyright law which meant that performers involved in a foreign sound recording will often enjoy more limited rights than the producers of the recording (i.e. the record labels).  This is due to the treatment of so-called ‘public performance rights’ (“PPR”).

Under the current law, producers of sound recordings enjoy exclusive rights to – among other things – control the broadcasting and playing in public of a work. However, performers do not enjoy similar rights. Instead, they have merely a right to equitable remuneration for such use of sound recordings containing their performances.

The picture becomes more complicated in the case of foreign sound recordings. There, a sound recording is eligible for copyright protection if the producer is a national or resident of a so-called ‘qualifying country’ (i.e. one that is a party to a relevant international agreement on copyright, either the Rome Convention or the WIPO Performances and Phonograms Treaty), or if the recording is first published in a qualifying country, or published in a qualifying country within 30 days of first publication. Given that most commercially-released recorded music is first published in at least one qualifying country within 30 days of first release, it would qualify for copyright protection – including PPR – in the UK and most producers can therefore receive revenue for the use of a foreign sound recording in the UK.

However, in the case of performers, their ability to receive revenue for the use of such recordings in the UK is limited since they cannot rely on the country of publication. Instead, they are only eligible for rights in their performance if they are a national of a qualifying country or if their performance is given in a qualifying country.  Where neither the country of the performers’ nationality or the country of performance are qualifying countries, or where the relevant country has issued a notification that they will not apply PPR for performers (as, most importantly, the USA has done) the UK law applies ‘material reciprocity’, meaning that in some cases, a foreign performer will only qualify for PPR in the UK “where and to the extent that the country of origin of the performance (where the performance took place, or the country of nationality of the performer) provides PPR to UK nationals”.

In the words of the original consultation document, “the different treatment applied by UK law to sound recordings and performances means that the performers involved in a foreign sound recording will often enjoy more limited rights than the producers of the recording. This is especially true of PPR. It is not uncommon for a foreign record label, as the producer of a sound recording, to be entitled to PPR in the UK while the foreign performers involved in the recording are not. This means that the UK PPR revenues for some foreign recordings accrue solely or largely to the record label (although contracts between featured artists and record labels can mean that some of those revenues end up being paid through to the featured artists involved in a recording).”

The consultation went on to explain that the international treaties on copyright to which the UK has signed up require “greater consistency between the treatment of performers and producers than UK law currently provides”. The Government therefore sought to “align eligibility for PPR across foreign sound recordings and foreign performances” and sought views on a number of options to achieve this:

1. Maintain the status quo.
2. Treat foreign performers in the same way the law currently treats foreign producers, expanding the pool of foreign performers eligible for PPR in the UK.
3. Treat foreign producers in the same way as the law currently treats foreign performers, significantly narrowing the pool of foreign producers eligible for PPR in the UK.
4. Apply option 2 to pre-existing sound recordings and performances and option 3 to new sound recordings and performances.

Ultimately, the Government has decided upon a new option which involves what it describes as a “limited change” to existing law, namely:

• continuing to provide PPR to producers of sound recordings on the same terms as at present; and
• providing PPR to performers on the same terms as at present, except to additionally provide these rights to performers where the producer of the sound recording of their performance is a national of the UK or certain other countries, including any country that is party to the Rome Convention (which importantly does not include the USA).

The Government explains that these changes will mean that even though there would continue to be some circumstances where a producer of a sound recording qualifies for PPR but the performer does not, more foreign performers would qualify than is currently the case. As a result, this would result in some costs to record labels, although the Government expects them to be small (and certainly less than if other options were implemented).

Ultimately, the Government explains that the option it has chosen “should not significantly undermine the continued investment by UK record labels into new British music and artists (as is a risk under the other options). It should also have no significant impact on users or consumers. We believe this approach best balances the interests of performers, rights holders, users, and the public”.

To read more, click here.