All Shook Up - Rock sound recordings under the public domain

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Elvis Presley's track "That's All Right" made the top 3 in the UK Singles chart on the 50th anniversary of the first release of the recording. This 50th anniversary also has implications for the copyright in the sound recording, with an expiry of 31 December 2004. As from 1 January 2005, third parties will be able to press and sell copies of this sound recording without infringing the copyright in the sound recording.

 

Elvis Presley's track "That's All Right" made the top 3 in the UK Singles chart on the 50th anniversary of the first release of the recording. This 50th anniversary also has implications for the copyright in the sound recording, with an expiry of 31 December 2004. As from 1 January 2005, third parties will be able to press and sell copies of this sound recording without infringing the copyright in the sound recording.

In the UK, copyright in a sound recording lasts for fifty years from the end of the year in which the sound recording was made, or if it was released before then, fifty years from the end of the year of release. Therefore, over the next few years, we will see sound recordings from the rock and roll era and later sound recordings from the 1960's (including sound recordings made by The Beatles, The Rolling Stones and early Motown records) fall into the public domain. This could lead for example to more use of sound recordings on compilations. It could also lead to increased use of sound recordings in advertising campaigns or as ringtones. Will we see for example "Blue Suede Shoes" being used by footwear manufacturers? Looking further ahead in the future, will the original sound recording of "I Just Called To Say I Love You" be used as a ring tone?

Copyright protection enables the owners of copyright to receive income during the life of copyright. The length of protection varies depending on the type of copyright work. Copyright works such as literary works (the lyrics of songs) or musical works (the song underlying the sound recording) enjoy protection for the life of the author plus 70 years from the end of the year in which the author died. This gives songwriters a far longer period of protection than owners of copyright in sound recordings where the copyright can expire during the lifetime of the performer featured on a sound recording. In contrast, copyright in films expires 70 years from the end of the year in which the last of four persons connected with the film dies.

What can an artist do if the copyright in the sound recording expires? Under UK copyright law performers have statutory performers' rights, which include the right to authorise the distribution of copies of a recorded performance. The rights, however, expire at roughly the same time as the copyright in the sound recording.

Creators also have certain moral rights including the right not to have one's work subject to derogatory treatment. However, this may not apply if a sound recording is released by a third party in its original condition.

If a performer is also a songwriter he may have some control over the exploitation of his musical works. A third party who wants to release a sound recording will need consent from the owner of the copyright in the underlying literary and musical work. A songwriter who retains rights in his works can prevent such exploitation. However, if the songwriter has transferred his copyright the new copyright owner may have no objection to third party exploitation of the musical works. Performers who have recorded works written by third parties, have even less control over how third parties can exploit their works.

A further complication is caused by the fact that the term of protection for sound recordings is not standard throughout the world. The 50-year period applies throughout the European Union. However, there is a longer period of protection in countries such as India and Australia. In the United States, for recordings made before 1996, copyright lasts for at least 95 years from first publication and for post-1976 recordings for the life of the artist plus 70 years. This therefore leads to the situation where, for example, Elvis Presley records will be in the public domain in the UK but not the US. Third parties who may legitimately be able to make sound recordings in the UK and sell them here will not be able to sell them in the US and in other countries.

There have been calls for the European period of protection for sound recordings to be extended. Industry bodies have asked that the discrepancy between the period of protection in the UK and the US be eliminated. However, in a European Commission staff working paper on copyright and related rights, the Commission have stated that the term of protection does not cause particular concern. Rather ominously they also stated that it could be argued that the term of protection should be reduced.

In the light of these comments, we should expect to see more and different types of use of sound recordings in the forthcoming years than we have seen before. I Can't Get No Satisfaction anyone?