Report On Copyright Protection

EUROPEAN PARLIAMENT

2004
2009
Session document
A6-0070/2009
18.2.2009
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REPORT
on the proposal for a directive of the European Parliament and of the Council
amending Directive 2006/116/EC of the European Parliament and of the
Council on the term of protection of copyright and related rights
(COM(2008)0464 C6-0281/2008 2008/0157(COD))
Committee on Legal Affairs
Rapporteur: Brian Crowley
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PR_COD_1am
Symbols for procedures

*
**I
**II
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***II
***III
Consultation procedure
majority of the votes cast
Cooperation procedure (first reading)
Cooperation procedure (second reading)
majority of the votes cast, to approve the common position
majority of Parliaments component Members, to reject or amend
the common position
Assent procedure
majority of Parliaments component Members except in cases
covered by Articles 105, 107, 161 and 300 of the EC Treaty and
Article 7 of the EU Treaty
Codecision procedure (first reading)
Codecision procedure (second reading)
majority of the votes cast, to approve the common position
majority of Parliaments component Members, to reject or amend
the common position
Codecision procedure (third reading)
majority of the votes cast, to approve the joint text
(The type of procedure depends on the legal basis proposed by the

Commission.)
Amendments to a legislative text

In amendments by Parliament, amended text is highlighted in bold italics. In
the case of amending acts, passages in an existing provision that the
Commission has left unchanged, but that Parliament wishes to amend, are
highlighted in bold. Any deletions that Parliament wishes to make in
passages of this kind are indicated thus: [...]. Highlighting in normal italics is
an indication for the relevant departments showing parts of the legislative
text for which a correction is proposed, to assist preparation of the final text
(for instance, obvious errors or omissions in a given language version).
Suggested corrections of this kind are subject to the agreement of the
departments concerned.
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CONTENTS
Page
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION................................. 5
EXPLANATORY STATEMENT............................................................................................ 19
OPINION OF THE COMMITTEE ON INDUSTRY, RESEARCH AND ENERGY ............ 21
OPINION OF THE COMMITTEE ON THE INTERNAL MARKET AND CONSUMER
PROTECTION ......................................................................................................................... 38
OPINION OF THE COMMITTEE ON CULTURE AND EDUCATION.............................. 48
PROCEDURE .......................................................................................................................... 59
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DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council amending
Directive 2006/116/EC of the European Parliament and of the Council on the term of
protection of copyright and related rights
(COM(2008)0464 C6-0281/2008 2008/0157(COD))
(Codecision procedure: first reading)
The European Parliament,
having regard to the Commission proposal to the European Parliament and the Council
(COM(2008)0464),
having regard to Article 251(2) and Articles 47(2), 55 and 95 of the EC Treaty, pursuant
to which the Commission submitted the proposal to Parliament (C6-0281/2008),
having regard to Rule 51 of its Rules of Procedure,
having regard to the report of the Committee on Legal Affairs and the opinions of the
Committee on Industry, Research and Energy, the Committee on the Internal Market and
Consumer Protection and the Committee on Culture and Education (A6-0070/2009),
1. Approves the Commission proposal as amended;
2. Calls on the Commission to refer the matter to Parliament again if it intends to amend the
proposal substantially or replace it with another text;
3. Instructs its President to forward its position to the Council and the Commission.
Amendment 1
Proposal for a directive amending act
Recital 5
Text proposed by the Commission
Amendment
(5) Performers generally start their careers

young and the current term of protection of
50 years with regard to performances fixed
in phonograms and for phonograms often
does not protect their performances during
their entire lifetime. Therefore, performers
face an income gap at the end of their
lifetimes. They are also often not able to
rely on their rights to prevent or restrict
objectionable uses of their performances

50 years with regard to the fixation of
performances often does not protect their
performances during their entire lifetime.
Therefore, performers face an income gap
at the end of their lifetimes. They are also
often not able to rely on their rights to
prevent or restrict objectionable uses of
their performances that occur during their
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that occur during their lifetimes.
lifetimes.
Justification
The creative contribution of all performers should be recognised and reflected in the
modification of the directive. To achieve this goal, the scope of the proposal should be
extended so that audiovisual performers could also benefit from the extended term of
protection; therefore the distinction between fixation of the performance in a phonogram or in
another way is proposed to be deleted (linked to the amendment on Article 3 - paragraph 1 of
Directive 2006/116/EC).
Amendment 2
Recital 5 a (new)
Amendment
(5a) The Commission should launch an
impact assessment procedure in relation
to the situation of the European
audiovisual sector in order to consider
the need for an extension of the term of
protection of copyright to producers and
broadcasters in the audiovisual sector;
that procedure should be completed by 1
January 2010 so that a proposal for a new
directive may be presented before June
2010.
Amendment 3
Recital 7 a (new)
Amendment
(7a) The Commission should ensure that
performers and session musicians will not
be obliged by contractual arrangements
with any third parties, such as record
companies, to transfer to those third
parties the revenues that derive from the
term of extension from 50 to 95 years.
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Amendment 4
Recital 8
Amendment
(8) Upon entering into a contractual

relationship with a phonogram producer,
performers normally have to transfer to the
phonogram producers their exclusive rights
of reproduction, distribution, rental and
making available of fixations of their
performances. In exchange, performers are
paid an advance on royalties and enjoy
payments only once the phonogram
producer has recouped the initial advance
and made any contractually defined
deductions. Performers who play in the
background and do not appear in the
credits ("non-featured performers") usually
transfer their exclusive rights against a
one-off payment (non recurring
remuneration).
(8) Upon entering into a contractual

relationship with a phonogram producer,
performers normally have to transfer to the
phonogram producers their exclusive rights
of reproduction, distribution, rental and
making available of fixations of their
performances. In exchange, performers are
paid an advance on royalties and enjoy
payments only once the phonogram
producer has recouped the initial advance
and made any contractually defined
deductions. Performers who play in the
background and do not appear in the
credits ("non-featured performers") as well
as some other performers who appear in
the credits ("featured performers")
usually transfer their exclusive rights
against a one-off payment (non recurring
remuneration).
Justification
Some performers whose names appear in the credits featured performers transfer their
exclusive rights against a one-off payment. These performers should also benefit from the
supplementary remuneration.
Amendment 5
Recital 9
Amendment
(9) For the sake of legal certainty it

should be provided that in the absence of
clear indications to the contrary, a
contractual transfer or assignment of
rights in the fixation of the performance
concluded before the date by which
Member States are to adopt measures
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(9) Member States should remain free to

adopt provisions on the interpretation,
adaptation, termination and further
execution of contracts governing the
transfer or assignment of the rights of the
performer in the fixation of his
performance to a phonogram producer
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implementing the directive shall continue

to produce its effects for the extended
term.
concluded before the extension of the

term of protection resulting from this
Directive.
Justification
It does not appear suitable that the proposed changes to Directive 2006/116/EC modify
Member States' rules on the interpretation, adaptation, termination and further execution of
contracts on the transfer or assignment of performers' rights to a phonogram producer.
Therefore, national rules on how performers' rights are transferred, assigned and how the
contracts on such assignments and transfers are terminated should govern the exercise of the
'use it or lose it' clause as foreseen in Article 10a, paragraph 6.
Amendment 6
Recital 9 a (new)
Amendment
(9a) In order to ensure that performers,
rather than record producers, benefit
from the extended term of protection, this
Directive should provide that any contract
in force assigning any extension of the
term of protection shall have no effect as
regards the extension of the term of
protection from 50 years to the lifetime of
the performer.
Justification
This amendment is designed to ensure that the additional term actually benefit performers.
Existing contractual arrangements must not therefore be treated as assigning the additional
term to a phonogram producer. In order to avoid co-ordination problems with respect to the
additional term, management of the rights is to be entrusted to collecting societies. This will
require collecting societies to administer the reproduction and distribution rights in relation
to fixations of performances for the extended term. Given that collecting societies will allow
for any operator to exploit the performance, there will be no need for a 'use it or lose it
provision'. Given that collecting societies will keep details of the performers whose
performances are embodied on phonograms, concerns about lack of clarity as to when a work
falls into the public domain can be avoided.
Amendment 7
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Recital 12
Amendment
(12) The first transitional accompanying

measure should not entail a
disproportionate administrative burden on
small and medium sized phonogram
producers. Therefore, Member States
shall be free to exempt certain phonogram
producers who are deemed small and
medium by reason of the annual revenue
achieved with the commercial
exploitations of phonograms.
deleted
Justification
Tous les artistes interprtes ou excutants devraient profiter du fonds. Les recettes verser
aux artistes concerns en vertu de cette mesure transitoire sont proportionnelles aux recettes
du producteur. Le versement sera donc moins important en cas de recette moindre du
producteur.
Amendment 8
Recital 14 a (new)
Amendment
(14a) In order to rebalance contracts

whereby performers transfer their
exclusive rights, on a royalty basis, to a
phonogram producer, a further condition
attached to term extension should be a
'clean slate' for those performers who
have assigned their above-mentioned
exclusive rights to phonogram producers
in return for royalties or remuneration. In
order for performers to benefit fully from
the extended term of protection, Member
States should ensure that, under
agreements between phonogram
producers and performers, a royalty or
remuneration rate unencumbered by
advance payments or contractually
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defined deductions is paid to performers

during the extended period.
Justification
This provision is essential for performers to enjoy all the royalties due to them for the
extended period, against a refusal by labels, on grounds that advance payments to the artists
have still not been recouped. Without this additional provision, the extension of the term of
protection may ultimately only be beneficial to a minority of featured artists.
Amendment 9
Recital 14 b (new)
Amendment
(14b) Likewise, in order to ensure that
performers that transfer their exclusive
rights in return for a recurring payment
or remuneration to a producer benefit
fully from the extended term of protection,
Member States should ensure that the
royalty or remuneration rate,
unencumbered by deductions for advance
payments or contractually defined
deductions, is paid to performers during
the extended period.
Justification
Amendment 10
Recital 17
Amendment
(17) Since the objectives of the proposed

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(17) Since the objectives of the proposed

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accompanying measures cannot be

sufficiently achieved by the Member
States, as national measures in that field
would either lead to distortion of the
conditions of competition or affect the
scope of exclusive rights of the phonogram
producer which are defined by Community
legislation and can therefore, be better
achieved at Community level, the
Community may adopt measures, in
accordance with the principle of
subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of
proportionality, as set out in that Article,
this directive does not go beyond what is
necessary in order to achieve those
objectives.
accompanying measures cannot be

sufficiently achieved by the Member
States, as national measures in that field
would either lead to distortion of the
conditions of competition or affect the
scope of exclusive rights of the phonogram
producer which are defined by Community
legislation and can therefore, be better
achieved at Community level, the
Community may adopt measures, in
accordance with the principle of
subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of
proportionality, as set out in that Article,
this directive does not go beyond what is
necessary in order to achieve those
objectives. Among the accompanying
transitional measures should also include
the mandatory collective exercise of the
rights of performers and phonogram
producers concerning on-demand services
by broadcasters of their radio or television
productions of which music from lawfully
published phonograms is an integral part.
This system of collective rights
management complements the
remuneration regime for the broadcasting
of lawfully published phonograms under
Article 8(2) of Directive 2006/115/EC and
guarantees that, throughout the full term
of protection of lawfully published
phonograms, the relevant performers and
phonogram producers receive a fair share
of the remuneration also for the ondemand use of broadcast productions.
Justification
The extension of the term of protection for performers and phonogram producers aggravates
the administrative difficulties for radio and television broadcasters to clear the necessary ondemand rights for their productions, in particular their archives. The clearance of rights for
the broadcasting of lawfully published phonograms is already subject to payment of equitable
remuneration (Article 8(2) of the Rental and Lending Directive 2006/115/EC), which payment
is shared between the relevant performers and phonogram producers. In order to achieve
both efficient rights management, as encouraged by Recital 26 of the 2001 Copyright
(InfoSoc) Directive, and a fair share for all right-holders also for the on-demand use of
broadcast productions, it is therefore appropriate to complement this remuneration regime by
a mandatory collective licensing scheme for such use.
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Amendment 11
Recital 19
Amendment
(19) Consequently, the harmonisation of

the term of protection in musical
compositions with words is incomplete,
giving rise to impediments to the free
movement of goods and services, such as
cross-border collective management
services.
(19) Consequently, the harmonization of

the term of protection in musical
compositions with words is incomplete,
giving rise to impediments to the free
movement of goods and services, such as
cross-border collective management
services. In order to ensure the removal of
such impediments, all such works in
protection as at the [date of entry into
force of this Directive] should have the
same harmonised term of protection in all
Member States.
Justification
The purpose of the Commission proposal is to harmonise the provisions on co-written works
in order to remove existing obstacles to the free movement of goods and services and
facilitate multi-territorial licensing. The amendment seeks clarification that the provision
should take effect as of the entry into force of the Directive in relation to all works still
protected in the EU at that time.
Amendment 12
Recital 19 a (new)
Amendment
(19a) If necessary, Member States should
ensure that the extension of the term of
protection of performers' rights is
accompanied by legislative provisions that
offer protection to performers in the form
of fair contractual terms in respect of
transfer or assignment.
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Justification
There is no need for harmonisation at EU-level on the terms of contact on transfer or
assignment; however, the attention of the Member States should be drawn to the fact that
usually session performers do not have a real negotiating power therefore the terms of such
contracts are usually one-sided.
Amendment 13
Article 1 point 4
Directive 2006/116/EC
Article 10a paragraph 2
Amendment
2. Paragraphs 3 to 6 of this article shall

apply to contracts on transfer or
assignment which continue to produce their
effects beyond the moment at which, by
virtue of Article 3 (1) and (2) in their
version before amendment by Directive [//
insert: Nr. of this amending directive]/EC,
the performer and the phonogram producer
would be no longer protected in regard of,
respectively, the fixation of the
performance and the phonogram.
2. Paragraphs 3 to 7 of this Article shall

assignment which continue to produce their
Justification
Amendment 14
Article 1 point 4
Article 10a paragraph 4 subparagraph 2
Amendment
Member States may provide that a

phonogram producer whose total annual
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deleted
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revenue, during the year preceding that

for which the said remuneration is paid,
does not exceed a minimum threshold of
2 million, shall not be obliged to dedicate
at least 20 percent of the revenues which
he has derived, during the year preceding
that for which the said remuneration is
paid, from the reproduction, distribution
and making available of those
phonograms in regard of which, by virtue
of Article 3 (1) and (2) in their version
before amendment by Directive [// insert:
Nr. of this amending directive]/EC, the
performer and the phonogram producer
would be no longer protected on 31
December of the said year.
Justification
Tous les artistes interprtes ou excutants devraient profiter du fonds. Les recettes verser
aux artistes concerns en vertu de cette mesure transitoire sont proportionnelles aux recettes
du producteur. Le versement sera donc moins important en cas de recette moindre du
producteur.
Amendment 15
Article 1 point 4
Amendment
5. Member States shall ensure that the
right to obtain an annual supplementary
remuneration referred to in paragraph 3 is
administered by the collecting society.
5. Member States may regulate whether

and to what extent administration by
collecting societies of the right to obtain an
annual supplementary remuneration
referred to in paragraph 3 may be imposed.
With respect to the administration of

rights concerning the on-demand services
by broadcasters of their radio or television
productions incorporating music from
lawfully published phonograms, Member
States shall ensure that the rights of
performers and phonogram producers to
grant or refuse authorisation for such use
may be exercised only through the
collecting society which has been
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established for collecting and distributing

the remuneration for broadcasting such
phonograms.
Justification
For the sake of simplifying the administrative procedures, the collecting societies should be
entrusted with the administration of the annual supplementary remuneration. (Linked to
amendment on Recital 13.).
the administrative difficulties for radio and television broadcasters to clear the necessary ondemand rights for their productions, in particular their archives. The clearance of rights for
the broadcasting of lawfully published phonograms is already subject to payment of equitable
remuneration (Article 8(2) of the Rental and Lending Directive 2006/115/EC), which payment
is shared between the relevant performers and phonogram producers. In order to achieve
both efficient rights management, as encouraged by Recital 26 of the 2001 Copyright
(InfoSoc) Directive, and a fair share for all right-holders also for the on-demand use of
broadcast productions, it is therefore appropriate to complement this remuneration regime by
a mandatory collective licensing scheme for such use.
Amendment 16
Article 1 point 4
Article 10a paragraph 5 a (new)
Amendment
5a. Collecting societies shall distribute
those remunerations on an individual
basis and taking into account the use of
each performers performances.
Justification
It is essential that collecting societies distribute in the most precise way and on individual
basis the remuneration collected on behalf of performers.
Amendment 17
Article 1 point 4
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Amendment
6. If, after the moment at which, by virtue

performance and the phonogram, the
phonogram producer ceases to offer copies
of the phonogram for sale in sufficient
quantity or to make it available to the
public, by wire or wireless means, in such
a way that members of the public may
access them from a place and at a time
individually chosen by them, the performer
may terminate the contract on transfer or
assignment. Where a phonogram contains
the fixation of the performances of a
plurality of performers, they may terminate
their contracts on transfer or assignment
only jointly. If the contract on transfer or
assignment is terminated pursuant to
sentences 1 or 2, the rights of the
phonogram producer in the phonogram
shall expire.

their contracts on transfer or assignment in
accordance with the applicable national
laws. If the contract on transfer or
shall expire.
Justification
The obligation for performers to act jointly is not realistic.
Amendment 18
Article 1 point 4
Amendment
If, one year after the moment at which, by

If, five years after the moment at which, by

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phonogram is not made available to the
individually chosen by them, the rights of
the phonogram producer in the phonogram
and the rights of the performers in relation
to the fixation of their performance shall
expire.

expire.
Justification
Tough the introduction of the use it or loose it clause is welcome, it should be made more
flexible. If the rights are reverted to the performer, this performer should be given a fair
chance to have his performance exploited before loosing again the rights. Therefore a more
reasonable period of time, 5 years, should be given to the performers to make the new
exploitation possibility feasible.
Amendment 19
Article 1 point 4
Amendment
6a. Where a performer is entitled
to recurring payments, neither advance
payments nor any contractually agreed
deductions shall be deducted from the
payments to the performer after the
moment at which, by virtue of Article 3(1)
before amendment by Directive [insert the
number of this amending directive]/EC,
the performer would be no longer
protected.
Justification
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Amendment 20
Article 2 a (new)
Amendment
Article 2a
No later than ... *, and every four years
thereafter, the Commission shall submit
to the European Parliament, the Council
and the European Economic and Social
Committee a report on the application and
effects of this Directive in which inter
alia, on the basis of specific information
supplied by the Member States,
consideration is given to the effectiveness
of the measures taken, when this Directive
was revised, in the light of the objectives
pursued. The Commission shall examine
in particular whether extension of the
duration of rights has had a positive effect
on the social situation of performers and
on musical output and whether additional
measures appear appropriate in order to
attain those objectives.
* Three years after the deadline for transposition
of this Directive.
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EXPLANATORY STATEMENT
The rapporteur supports the Commission proposal which aims to improve the social situation
of performers, and in particular sessions musicians, taking into account that performers are
increasingly outliving the existing 50 year period of protection for their performances.
The main proposal of Directive involve extending the term of protection for performers and
phonogram producers countries from 50 to 95 years but they also provide for several
accompanying measures such as establishing a fund for session musicians and introducing
use it or lose it clauses in contracts between performers and phonogram producers.
Legally, the proposals involve amending Directive 2006/116/EC of 12 December 2006 on the
term of protection of copyright and certain related rights. That Directive codified and
superseded the earlier Directive 93/98/EEC on the term of protection of copyright and certain
related rights (often referred to as the Term Directive) without making substantive changes.
The intention of the proposals is to benefit both performers and record producers.
The extended term would benefit performers who could continue earning money over an
additional period. A 95-year term would bridge the income gap that performers face when
they turn 70, just as their early performances recorded in their 20s would lose protection.
They would continue to be eligible for broadcast remuneration, remuneration for
performances in public places, such as bars and discotheques, and compensation payments for
private copying of their performances.
The extended term would also benefit the record producers. It would generate additional
revenue from the sale of records in shops and on the Internet.
The proposals also put forward a uniform way of calculating the term of protection, when it
concerns a musical composition, containing the contributions of several authors as music is
overwhelmingly co-written; EU-wide, the term of protection of a musical composition would
expire 70 years after the death of the last surviving author, be it the author of the lyrics or the
composer of the music.
Commissions proposal to apply a uniform method of calculating the term of protection of
musical compositions with lyrics whereby, when a musical composition is published with
lyrics, the term of protection will be calculated from the death of the last surviving person: the
author of the lyrics or the composer of the music.
The current differences in term of protection, particularly between Europe and the US, cause
legal uncertainty and piracy especially in the digital environment where there are no
boundaries and the works can be used at the same moment in different countries. It is an
undeniable fact that different terms of protection could help to develop the piracy:
performances that have fallen into the public domain in one country can be distributed online
from there to other countries where they are still protected. Finally, Europe is able to protect
its artists, one the most important expression of its cultural diversity.
Equalising term of protection with the U.S. would be an excellent opportunity for Europe
economy to further the progress of the EU Lisbon Strategy for growth and jobs, which
recognised the particular importance of promoting the creative industries. At a time when
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creative industries based on intellectual property are generating an increasing percentage of

GDP in the EU, the current disparity between the term of protection in the EU and the US
clearly puts European record companies and performers at a competitive disadvantage.
If the European recording industry is to be truly competitive in the global marketplace, the EU
needs to close the gap by equalising term of protection at 95 years to provide a level playing
field with Europes main trading partner. A shorter period of time would not achieve this.
Furthermore, the current increase of the life expectancy of the population during the last years
makes the extension of the protection of performers rights even more essential for the artists
concerned. Unfortunately, many performers know popularity and success especially when
they are young so it is essential that they receive the right economic reward when they are old
every time their work is communicated to the public.
Besides, an extended term would encourage cultural diversity: with an unchanged term, old
performances gradually loosing copyright protection would inevitably be favoured to the
detriment of contemporary creations. Furthermore, the latter would inevitably seek to please
those markets where protection is longer, ignoring the call for local, diversified, content.
Finally, it must also be understood that the lack of proper status makes it extremely difficult
for performers in Europe to make a living from their creations, regardless of the size of their
contribution to the economy of culture in EU. The vast majority of performers has very little
access to social security, unemployment compensation or health and safety protection and is
generally confronted with widespread unfair contractual practices. In this context, the income
generated by the intellectual property rights represents a vital source of income for
performers.
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16.12.2008
OPINION OF THE COMMITTEE ON INDUSTRY, RESEARCH AND ENERGY
for the Committee on Legal Affairs

(COM(2008)0464 C6-0281/2008 2008/0157(COD))
Rapporteur: Erna Hennicot-Schoepges
SHORT JUSTIFICATION
The draftswoman welcomes the proposal by the Commission on extending the term of protection
of related rights and creating additional transitory safeguard measures. The proposal recognises
the importance of performers creative and artistic contribution which needs to be properly
reflected upon in the term of protection.
The draftswoman, however, is of the opinion that, in order to better achieve those objectives, the
proposal could be further amended to take into account the economic and social reality and
recent technological developments; and therefore proposes a set of amendments along the
following main lines:
(i) extension of the scope by including audiovisual performers;
(ii) deletion of the exemption for small recorders from contributing to the fund set aside for
session musicians;
(iii) simplification of the administration of this fund;
(iv) more flexibility for the use it or loose it clause;
(v) further assessment of the making available on-line.
(i) Extension of the scope by including audiovisual performers

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another way is proposed to be deleted. Also, the same starting dates from which the duration
of protection is calculated for performers rights and for producers rights should apply (as
foreseen under Article 3, paragraph 2). (Related amendments: Amendment 1 of the draft
opinion on Recital 5; Amendment 2 of the draft opinion on Recital 7; and Amendment 10 of
the draft opinion on Article 3, paragraph 1 of Directive 2006/116/EC.)
(ii) Deletion of the exemption for small recorders from contributing to the fund set aside for
session musicians
The Commission proposed an exemption for small record producers from setting aside at least
20 percent of revenues in order to contribute to the fund created for session musicians. Such
exemption would create an unfair situation for the performers and would not strike a fair
balance between the interest of performers and of small producers. In addition, larger record
producers might also try to avoid paying supplementary remuneration by signing licensing
contracts with smaller phonogram producers. Therefore this exemption is proposed to be
deleted. (Related amendments: Amendment 4 of the draft opinion on Recital 12; and
Amendment 12 of the draft opinion on Article 10 a (new), paragraph 4, subparagraph 2 of
Directive 2006/116/EC.)
(iii) Simplification of the administration of the above fund
In order to simplify the administrative procedures, the collecting societies should be entrusted
with the administration of the above fund. (Related amendments: Amendment 5 of the draft
opinion on Recital 13; Amendment 6 of the draft opinion on Recital 14 a (new); and
Amendment 13 of the draft opinion on Article 10 a (new), paragraph 5 of Directive
2006/116/EC.)
(iv) More flexibility for the use it or loose it clause
Though the introduction of the use it or loose it clause is welcome, it should be made more
exploitation possibility feasible. (Related amendment: Amendment 14 of the draft opinion on
Article 10 a (new), paragraph 6, subparagraph 2.)
(v) Further assessment of on-line making available
With the increase of use of and demand for on-line services, the making available of
performances on-line should be studied in more detail. The Commission should be
encouraged to evaluate the current legal and economic situation and assess further the impacts
of this option. In the frame of such assessment particular attention should be given to the
practical administration of the claim for equitable remuneration paid for the performers (such
as how to quantify the financial benefits; and who should pay this remuneration); rules and
obligations stemming from the relevant international conventions should also be carefully
considered. (Related amendment: Amendment 9 on Recital 19 c (new)).
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AMENDMENTS
The Committee on Industry, Research and Energy calls on the Committee on Legal Affairs, as
the committee responsible, to incorporate the following amendments in its report:
Amendment 1
Recital 9
Amendment

term.
(9) In order to ensure that performers,

rather than record producers, benefit
from the extended term of protection, this
Directive should provide that any contract
in force assigning any extension of the
term of protection shall have no effect as
regards the extended protection term from
50 years to the lifetime of the performer.
Justification
Amendment 2
Recital 12
Amendment

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Justification
The proposed exception creates an unfair situation for the performers and does not strike a
fair balance of between the interest of performers and of small producers. In addition, larger
record companies might also try to avoid paying supplementary remuneration by signing
licensing contracts with smaller phonogram producers. (Linked to the amendment on Article
10 a (new), paragraph 4, subparagraph 2 of Directive 2006/116/EC.)
Amendment 3
Recital 13
Amendment
(13) Those monies should be reserved

solely for the benefit of performers whose
performances are fixed in a phonogram and
who have transferred their rights to the
phonogram producer against a one-off
payment. The monies set aside in this
manner should be distributed to nonfeatured performers at least once a year on
an individual basis. Member States may
require that distribution of those monies is
entrusted to collecting societies
representing performers. When the
distribution of those monies is entrusted
to collecting societies, national rules on
non-distributable revenues may be
applied.

representing performers.
Justification
The administration of those monies should be entrusted to collecting societies in order for the
said monies to be effectively assigned to the beneficiaries indicated in the original proposal of
the European Commission, i.e. session musicians.
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Amendment 4
Recital 14 a (new)
Amendment
(14a) Part of the first accompanying
transitional measure should be the
mandatory collective exercise of the rights
of performers and phonogram producers
concerning on-demand services by
broadcasters of their radio or television
The system of collective rights
programmes, the relevant performers and
phonogram producers also receive a fair
share of the remuneration for the ondemand use of broadcast production.
Justification
For the sake of simplifying the administrative procedures for, among others, radio and
television broadcasters to clear the necessary on-demand rights for their productions, the
collecting societies should be entrusted with the administration of the annual supplementary
remuneration. (Linked to amendment on Article 10 a (new), paragraph 5 of Directive
2006/116/EC.)
Amendment 5
Recital 14 b (new)
Amendment
(14b) This Directive should provide for
the re-assessment of the legal protection
of performers. The digital environment
provides new possibilities for exploitation
of protected content, which should benefit
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all rights holders. To achieve that goal,

impact assessments should be conducted
at the Community level and by Member
States in order to estimate how the legal
protection of performers should be
improved, notably with the introduction of
an exclusive right of making available to
the public to the benefit of performers, for
the exploitation of their performances in
such a way that members of the public
may access them from a place and at a
time individually chosen by them (i.e. ondemand services). In the framework of
such assessments, particular attention
should be given to the practical
administration of claims for equitable
remuneration for performers (such as
quantification of financial benefits; and
responsibility for remuneration). Rules
and obligations laid down in the relevant
international conventions should also be
carefully considered.
Amendment 6
Recital 14 c (new)
Amendment
(14c) In order to rebalance contracts
under which performers transfer their
have assigned those rights to phonogram
producers in return for royalties or
remuneration. In order for performers to
benefit fully from the extended term of
protection, Member States should ensure
that, under agreements between
phonogram producers and performers, a
royalty unencumbered by advance
deductions is paid to performers during
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Justification
Amendment 7
Recital 19 a (new)
Amendment
(19a) If necessary, Member States should
ensure that the extension of the term of
offer protection to performers for fair
contractual terms on transfer or
assignment.
Amendment 8
Article 1 point 1
Article 3 paragraph 1 sentence 2
Amendment
(1) The second sentence of Article 3(1) is

replaced by the following:
(1) At the end of Article 3(1) the following

sentence shall be added:
"However,
"However, if at the end of this period, a

performer is alive, the rights of that
performer shall continue to be protected
in the performer's lifetime."
- if a fixation of the performance

otherwise than in a phonograph is
lawfully published or lawfully
communicated to the public within this
period, the rights shall expire 50 years
from the date of the first such publication
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or the first such communication to the

public, whichever is the earlier,
- if a fixation of the performance in a
phonograph is lawfully published or
lawfully communicated to the public
within this period, the rights shall expire
95 years from the date of the first such
publication or the first such
communication to the public, whichever is
the earlier.
Justification
The extension should apply to performers only, and only until they die. This proposal mirrors
the current Greek law, which has not been harmonized. The Commission has indicated that it
has declined to bring enforcement proceedings against Greece, because it regards the Greek
provision as preferable to the current harmonized law. No extension is justified for
phonogram producers, a 50 year fixed term being more than sufficient time in which to
recoup any investment.
Amendment 9
Article 1 point 2
Article 3 paragraph 2 sentences 2 and 3
Amendment
deleted
(2) In the second and third sentence of

Article 3(2) the cipher "50" is replaced by
the cipher "95"
Justification
In order to ensure that phonograms are exploited during the fifty year term of protection for
the benefit of performers, an additional qualification is added to the rights of phonogram
producers. Where a published phonogram ceases to be available to the public for a period of
three years, the performers shall be entitled to reclaim both the rights in the performances
embodied and the rights in the phonograms (without which it would not be possible to exploit
the former rights). Where all performers act in concert, these rights vest in the performers,
which will enable them either to enter into a new exploitation contract, to make the fixation
available or to place the fixation in the public domain. Where the performers are unable or
unwilling to act in concert, the rights must be vested in a collecting society, which will
distribute revenues to the various performers equitably.
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Amendment 10
Article 1 point 4
Amendment
1. In the absence of clear indications to

the contrary, a contract, concluded before
[insert date before which Member States
are to transpose the amending directive, as
mentioned in Article 2 below], whereby a
performer has transferred or assigned his
rights in the fixation of his performance to
a phonogram producer (hereinafter: a
"contract on transfer or assignment"), shall
be deemed to continue to produce its
insert: Nr. of this amending directive], the
1. A contract, concluded before [insert date

before which Member States are to
transpose the amending directive, as
mentioned in Article 2 below], whereby a
performer has transferred or assigned his
rights other than to a collecting society in
the fixation of his performance to a
phonogram producer (hereinafter: a
"contract of transfer or assignment"), shall
be deemed not to produce any effect
beyond the moment at which, by virtue of
Article 3 (1) in their version before
amendment by Directive [// insert: Nr. of
this amending directive], the performer
performance.
Justification
Amendment 11
Article 1 point 4
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Amendment
2. Paragraphs 3 to 6 of this article shall

assignment which continue to produce
their effects beyond the moment at which,
by virtue of Article 3 (1) and (2) in their
the performer and the phonogram
producer would be no longer protected in
regard of, respectively, the fixation of the
2. Where a performer has not transferred

the management of his rights to a
collecting society as regards the additional
term of protection that is conferred as a
result of this Directive, the collecting
society which manages rights of the same
category shall be deemed to be mandated
to manage his rights. The performer shall
retain his moral rights.
Justification
Amendment 12
Article 1 point 4
Amendment
2a. Where a performer has transferred his
exclusive rights for a recurring payment,
no advance payments nor contractually
defined deductions shall be deducted from
the recurring payment due to the
performer.
Amendment 13
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Article 1 point 4
Amendment
3. Where a contract on transfer or

assignment gives the performer a right to
claim a non recurring remuneration, the
performer shall have the right to obtain
an annual supplementary remuneration
from the phonogram producer for each
full year in which, by virtue of Article 3
(1) and (2) in its version before
amendment by Directive [// insert: Nr. of
this amending directive]/EC, the
3. The collecting society shall distribute

the revenues received from the
exploitation of phonograms equitably, and
in such a manner as to reflect the nature
and extent of the contribution of each
performer whose protected performance is
embodied in a phonogram.
Justification
Amendment 14
Article 1 point 4
Article 10 a paragraph 4 subparagraph 2
Amendment

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deleted
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Justification
The proposed exception creates an unfair situation for the performers and does not strike a
fair balance of between the interest of performers and of small producers. In addition, larger
record companies might also try to avoid paying supplementary remuneration by signing
licensing contracts with smaller phonogram producers. (Linked to the amendment on Recital
12.)
Amendment 15
Article 1 point 4
Amendment

Justification
amendment on Recital 13.)
Amendment 16
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Article 1 point 4
Amendment
5a. With respect to the exercise of rights
broadcasters relating to their radio or
television productions incorporating
music from lawfully published
phonograms, Member States shall ensure
that the rights of performers and
phonogram producers to grant or refuse
authorisation for such use shall be
exercised solely through the collecting
society which has been established for
collecting and distributing the
remuneration for broadcasting such
phonograms.
Justification
Although it is possible for the rights of copyright holders to fair remuneration to be cleared
through the relevant collecting society, there is no corresponding legal obligation in relation
to the associated rights of performers.
The proposed provision would make it easier for broadcasters to clear the relevant rights,
ensure the rightholders received fair remuneration and allow Europe's citizens access to
culturally, historically and politically important material from broadcasters' archives.
Amendment 17
Article 1 point 4
Amendment


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access them from a place ant at a time
shall expire.

jointly or individually in accordance with
the applicable national laws. If the
contract on transfer or assignment is
terminated pursuant to sentences 1 or 2, the
rights of the phonogram producer in the
phonogram shall expire.
Amendment 18
Article 1 point 4
Amendment


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expire.
expire.
Justification
Tough the introduction of the use it or loose it clause is welcome, it should be made more
exploitation possibility feasible.
Amendment 19
Article 1 point 4 a (new)
Article 10a a (new)
Amendment
(4a) The following Article shall be
inserted:
"Article 10aa
Where a performer has transferred or
assigned the exclusive right to authorise
or prohibit the making available to the
individually chosen by them, of the
fixation of his performance, that
performer shall retain the right to obtain
an equitable remuneration to be paid by
the user for the making available to the
public of his fixed performance.
The right of the performer to obtain an
equitable remuneration for the making
available to the public of his performance
cannot be waived.
This remuneration is collected and
administered by a performers collecting
society."
Justification
A remuneration to the performers has to be recognised by those who make the performance
available to the public.
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PROCEDURE
Title
Term of protection of copyright and related rights
References
COM(2008)0464 C6-0281/2008 2008/0157(COD)
Committee responsible
JURI
Opinion by
Date announced in plenary
ITRE
2.9.2008
Drafts(wo)man
Date appointed
Erna HennicotSchoepges
25.9.2008
Discussed in committee
13.11.2008
Date adopted
11.12.2008
Result of final vote
+:
:
0:
Members present for the final vote
John Attard-Montalto, Jan Bezina, Jorgo Chatzimarkakis, Drago

Florin David, Den Dover, Nicole Fontaine, Adam Gierek, Norbert
Glante, Andrs Gyrk, Fiona Hall, Erna Hennicot-Schoepges, Reino
Paasilinna, Vladimr Remek, Teresa Riera Madurell, Britta Thomsen,
Catherine Trautmann, Claude Turmes, Nikolaos Vakalis
Substitute(s) present for the final vote
Etelka Barsi-Pataky, Ivo Belet, Manuel Antnio dos Santos, Neena

Gill, Edit Herczog, Vladimir Urutchev, Lambert van Nistelrooij
Substitute(s) under Rule 178(2) present

for the final vote
Louis Grech, Aurelio Juri, Sepp Kusstatscher, Eva Lichtenberger, Rosa

Migulez Ramos, Mara Sornosa Martnez
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19
10
2
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12.12.2008
OPINION OF THE COMMITTEE ON THE INTERNAL MARKET AND CONSUMER
PROTECTION

(COM(2008)0464 C6-0281/2008 2008/0157(COD))
Rapporteur: Emmanouil Angelakas
SHORT JUSTIFICATION
Your rapporteur generally supports the Commission proposal to extend the term of protection
for performers and phonogram producers countries from 50 to 95 years. Taking the view that
the proposal is a sensible reflection of the fact that performers are increasingly outliving the
existing 50 year period of protection, your rapporteur is not proposing any amendments to this
extension.
The proposal also include accompanying measures such as establishing a fund for session
musicians and it also seek to introduce a uniform way of calculating the term of protection
that applies to a musical composition with words which contains the contributions of several
authors. Different Member States apply different systems for such co-written compositions.
This leads to difficulties in administering copyright across the Community and difficulties in
cross-border distribution of royalties for the exploitation that occurs in different Member
States. Your rapporteur supports the proposal to harmonise rules in this respect, taking the
view that the current discrepancies is hampering the effective functioning of the Internal
Market.
Generally supporting the idea of introducing use it or lose it clauses in contracts between
performers and phonogram producers, your rapporteur however takes the view that some
changes should be introduced in this part of the proposal.
Firstly, in the case of several performers being recorded together, the current proposal obliges
them to act jointly to terminate their contracts on transfer or assignment. This means that 50
years after a recording took place, the performers would have to actually agree. This is not
realistic and it is the view of your rapporteur that this should be changed allowing them to act
individually.
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Secondly, the current proposal is referring to allowing the performer a reasonable time to have
his performance, for which the rights are about to expire, exploited. However, in the proposal
this one year is suggested for this. Your draftsperson does not consider this as a reasonable
time and takes the view that five years is more appropriate in this respect.
Your rapporteur is also proposing to include an amendment calling upon the Commission to
report to the European Parliament and the Council on the operation of the transitional
measures after five years.
AMENDMENTS
The Committee on the Internal Market and Consumer Protection calls on the Committee on
Legal Affairs, as the committee responsible, to incorporate the following amendments in its
report:
Amendment 1
Recital 5
Amendment

50 years with regard to performances fixed
in phonograms and for phonograms often
does not protect their performances during
their entire lifetime. Therefore, performers
face an income gap at the end of their
lifetimes. They are also often not able to
rely on their rights to prevent or restrict
objectionable uses of their performances
that occur during their lifetimes.

50 years with regard to the fixation of
performances often does not protect their
performances during their entire lifetime.
Therefore, performers face an income gap
at the end of their lifetimes. They are also
often not able to rely on their rights to
prevent or restrict objectionable uses of
their performances that occur during their
lifetimes.
Justification
another way is proposed to be deleted. (Linked to the amendment on Article 3 - paragraph 1
of Directive 2006/116/EC.)
Amendment 2
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Recital 7
Amendment
(7) The term of protection for fixations of

performances and for phonograms should
therefore be extended to 95 years after
publication of the phonogram and the
performance fixed therein. If the
phonogram or the performance fixed in a
phonogram has not been published within
the first 50 years, then the term of
protection should run for 95 years from
the first communication to the public.
(7) The term of protection for fixations of

performances and for phonograms should
therefore be extended to 95 years after the
relevant trigger point.
Justification
another way is proposed to be deleted. (Linked to the amendment on Article 3 - paragraph 1
of Directive 2006/116/EC.)
Amendment 3
Recital 9
Amendment
(9) Member States should remain free to
adopt provisions on the interpretation,
adaptation, termination and further
execution of contracts governing the
transfer or assignment of the rights of the
performer in the fixation of his
performance to a phonogram producer
concluded before the extension of the
term of protection resulting from this
Directive.

term.
Justification
It does not appear suitable that the proposed changes to Directive 2006/116/EC modify
Member States' rules on the interpretation, adaptation, termination and further execution of
contracts on the transfer or assignment of performers' rights to a phonogram producer.
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Therefore, national rules on how performers' rights are transferred, assigned and how the
contracts on such assignments and transfers are terminated should govern the exercise of the
'use it or lose it' clause as foreseen in Article 10a, paragraph 6.
Amendment 4
Recital 12
Amendment

deleted
Amendment 5
Recital 13
Amendment

non-distributable revenues may be applied.

an individual basis. Member States should
ensure that distribution of those monies is
representing performers. National rules on
Amendment 6
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Recital 14 a (new)
Amendment
(14a) In order to rebalance contracts
under which performers transfer their
have assigned those rights to phonogram
producers in return for royalties or
remuneration. In order for performers to
benefit fully from the extended term of
protection, Member States should ensure
that, under agreements between
phonogram producers and performers, a
royalty unencumbered by advance
deductions is paid to performers during
Justification
Amendment 7
Recital 15 a (new)
Amendment
(15a) Where a phonogram contains the
fixation of the performances of a plurality
of performers, Member States should be
free to decide whether the performers may
terminate the transfer or assignment
jointly or individually.
Amendment 8
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Article 1 point 1
Article 3 paragraph 1 indent 1
Amendment
- if a fixation of the performance otherwise

than in a phonograph is lawfully published
or lawfully communicated to the public
within this period, the rights shall expire 50
years from the date of the first such
publication or the first such communication
to the public, whichever is the earlier,
- if a fixation of the performance otherwise

than in a phonograph is lawfully published
or lawfully communicated to the public
within this period, the rights shall expire 95
years from the date of the first such
publication or the first such communication
to the public, whichever is the earlier,
Justification
The discrimination between music and audiovisual performers is totally unacceptable as the
Directive 93/98/EEC,whose codified version is Directive 2006/116/EC doesnt make any
discrimination between performers), so create different regimes for the same category
performers would be a discrimination under the European Law and against national
treatment. Furthermore there is no reason for such discrimination.
Amendment 9
Article 1 point 4
Amendment
deleted

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Justification
As the transitional accompanying measure (the 20%) will be measured on net revenues, there
will be no disproportionate costs incurred by SMEs, therefore to ensure that all performers
benefit from these monies, it is reasonable to include them within the measure.
Amendment 10
Article 1 point 4
Amendment

Justification
amendment on Recital 13)
Amendment 11
Article 1 point 4
Amendment


of Article 3(1) and (2) in their version
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shall expire.

their contracts on transfer or assignment in
accordance with the applicable national
laws. If the contract on transfer or
shall expire.
Justification
The obligation for performers to act jointly is not realistic.
Amendment 12
Article 1 - point 4
Article 10a - paragraph 6 subparagraph 2
Amendment


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expire.

expire.
Justification
The obligation for performers to act jointly is not realistic. Moreover, recital 16 is referring
to allowing the performer a reasonable time to have his performance, for which the rights are
about to expire, exploited. However, one year is not considered as a reasonable time, and five
years are more appropriate.
Amendment 13
Article 1 - point 5 a (new)
Article 11 a (new)
Amendment
(5a) the following Article shall be
inserted:
"Article 11a
Reporting
Within five years of the date of entry into
force of Directive .../.../EC of the
European Parliament and of the Council
of...*, the Commission shall submit to the
European Parliament and to the Council
a report on the operation of the provisions
of Article 10a(3) to (5) of this Directive.
* OJ: please insert the number and date of this
Directive."
Justification
The reporting will allow the European Parliament and the Council to monitor the effect of
the changes, in particular in relation to the transitional measures.
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PROCEDURE
Title
References
COM(2008)0464 C6-0281/2008 2008/0157(COD)
JURI
Opinion by
IMCO
2.9.2008
Drafts(wo)man
Date appointed
Emmanouil
Angelakas
10.9.2008
10.11.2008
Date adopted
2.12.2008
+:
:
0:
Gabriela Creu, Mia De Vits, Janelly Fourtou, Evelyne Gebhardt, Mart

Grau i Seg, Magorzata Handzlik, Malcolm Harbour, Christopher
Heaton-Harris, Anna Hedh, Edit Herczog, Eija-Riitta Korhola, Lasse
Lehtinen, Toine Manders, Catiuscia Marini, Arlene McCarthy,
Catherine Neris, Bill Newton Dunn, Zita Pletinsk, Zuzana Roithov,
Heide Rhle, Leopold Jzef Rutowicz, Christel Schaldemose, Andreas
Schwab, Eva-Britt Svensson, Marianne Thyssen, Jacques Toubon,
Barbara Weiler
Emmanouil Angelakas, Brigitte Four, Joel Hasse Ferreira, Anja

Weisgerber

for the final vote
Maddalena Calia
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4
2
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10.12.2008
OPINION OF THE COMMITTEE ON CULTURE AND EDUCATION

(COM(2008)0464 C6-0281/2008 2008/0157(COD))
Rapporteur: Christopher Heaton-Harris
SHORT JUSTIFICATION
The proposal aims to improve the social situation of performers, and in particular sessions
musicians, taking into account that performers are increasingly outliving the existing 50 year
period of protection for their performances.
The large scale production of phonograms is essentially a phenomenon that commenced in the
1950s. If nothing is done, over the next 10 years an increasing amount of performances
recorded and released between 1957 and 1967 will lose protection. Once their performance
fixed in a phonogram is no longer protected, around 7000 performers in any of the big
Member States and a correspondingly smaller number in the smaller Member States will lose
all of their income that derives from contractual royalties and statutory remuneration claims
from broadcasting and public communication of their performances in bars and discotheques.
This affects featured performers (those who receive contractual royalties) but especially the
thousands of anonymous session musicians (those who do not receive royalties and rely solely
on statutory remuneration claims) who contributed to phonograms in the late fifties and sixties
and have assigned their exclusive rights to the phonogram producer against a flat fee payment
('buy out'). Their 'single equitable remuneration' payments for broadcasting and
communication to the public, which are never assigned to the phonogram producer, would
cease.
The draftsman is very supportive of the Commission proposal - it provides extended benefits
for performers and for phonograph producers, and in particular the clauses relating to the 20%
levy and the "use it or lose it" clause both ensure that performers, and session musicians in
particular, will be benefit significantly from the extension of term, and that their rights are
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well protected.
The draftsman believes that the 2 million limit for producers is not necessary, as this may
prevent some performers from receiving the revenue they need, so recommends that it be
removed. Similarly, the proposals to remove the rights from the performers should be
removed as this could lead to artists and performers being disadvantaged financially.
The draftsman strongly supports the use of net revenue as the measure for the 20% levy ensuring that producers can deduct reasonable costs directly related to the administration of
the term extension of the phonogram. It must be ensured that only those costs directly related
can be deducted, in order to ensure fair and consistent remuneration for performers.
AMENDMENTS
The Committee on Culture and Education calls on the Committee on Legal Affairs, as the
committee responsible, to incorporate the following amendments in its report:
Amendment 1
Recital 5 a (new)
Amendment
(5a) The new technologies offer the
possibility of the digital distribution of
phonograms in legal online services.
Within this framework, phonograms from
previous years are included, thereby
creating the opportunity to sell less
popular phonograms, which will produce
an income for older and less popular
artists.
Justification
Extending the duration of protection for related rights will increase the motivation for record
companies to digitalise their catalogues. Online distribution services will thus create new
prospects for many recordings, thereby creating new sources of income for artists.
Furthermore, the digitalisation of earlier phonograms will provide income for older or less
popular artists who will benefit from so-called 'longtail sales'.
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Amendment 2
Recital 5 b (new)
Amendment
(5b) The European Parliament asks the
Commission to launch an impact
assessment procedure similar to that
carried out for the music sector to
consider whether there is a need to extend
the term of protection that currently
applies in the audiovisual sector (artists
performers, producers and broadcasters).
Justification
In principle, the creative contribution of all performers should be recognised and reflected in
the directive. However, as no impact assessment has been conducted by the European
Commission on the consequences of a possible extension of the term of protection for
performers in other sectors, such an extension is not reasonable at this stage. Therefore the
Commission is hereby mandated to conduct an impact assessment on the audiovisual sector.
Amendment 3
Recital 12
Amendment
deleted

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Justification
Amendment 4
Recital 13
Amendment


an individual basis. Member States should
ensure that distribution of those monies is
representing performers. National rules on
According to the principles stated in the
UNESCO Universal Declaration on
Cultural Diversity, collecting societies
have to play their fundamental role in
preserving cultural diversity.
Amendment 5
Recital 15
Amendment
(15) A second accompanying transitional

measure should be that the rights in the
fixation of the performance should revert
to the performer if a phonogram producer
refrains from offering for sale in sufficient
quantity copies of a phonogram which, but
for the term extension, would be in the
public domain or from making such a
(15) A second accompanying transitional

measure should be that if a phonogram
producer no longer offers for sale in
sufficient quantity copies of at least one
version of a phonogram which, but for the
term extension, would be in the public
domain, or no longer makes at least one
version of such a phonogram available to
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phonogram available to the public. As a

consequence, the rights of the phonogram
producer in the phonogram should expire,
in order to avoid a situation in which
these rights would coexist with those of
the performer in the fixation of the
performance whilst the latter rights are no
longer transferred or assigned to the
phonogram producer.
the public, the performer may request him

to do so, and if the producer does not
fulfil that request within a reasonable
time, the performer may terminate the
assignment of the rights in the fixation of
that performance.
Justification
It is reasonable that phonogram producers need make available in sufficient quantity to the
public one version of the phonogram in question.
Amendment 6
Recital 16
Amendment
(16) This accompanying measure should

also ensure that a phonogram is no longer
protected once it is not made available to
the public after a certain period of time
following the term extension, because
rightholders do not exploit it or because the
phonogram producer or the performers
cannot be located or identified. If, upon
reversion, the performer has had a
reasonable period of time to make
available to the public the phonogram
which, but for the term extension, would
be no longer protected, the phonogram is
not made available to the public, the
rights in the phonogram and in the
fixation of the performance should expire.
(16) This accompanying measure should

also ensure that a phonogram is no longer
protected once it is not made available to
the public after a certain period of time
following the term extension, because
rightholders do not exploit it or because the
phonogram producer or the performers
cannot be located or identified.
Justification
The "use it or lose it" clause is designed to protect the rights of performers, and to ensure that
phonographic producers cannot curtail those rights unfairly. Recital 15 achieves this, and the
further measures in Recital 16 provide no further benefit to the performers - and in many
cases will lead to performers losing out.
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Amendment 7
Recital 17 a (new)
Amendment
(17a) Among the accompanying
transitional measures is the mandatory
collective exercise of the rights of
performers and phonogram producers
This system of collective rights
phonograms, the relevant performers and
phonogram producers receive a fair share
of the remuneration for the on-demand
use of broadcast productions.
Amendment 8
Recital 19 a (new)
Amendment
(19a) Member States should ensure that
the proposal to extend the term of
offer protection to performers in the form
of fair contractual terms on transfer or
assignment.
Justification
There is no need for harmonisation at EU-level on the terms of contact on transfer or

assignment; however, the attention of the Member States should be drawn to the fact that
usually session performers do not have a real negotiating power therefore the terms of such
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contracts are usually one-sided.
Amendment 9
Article 1 point 4
Amendment

deleted
Justification
Amendment 10
Article 1 point 4
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Amendment


Justification
Amendment 11
Article 1 point 4
Amendment
5a. Collecting societies shall distribute
those remunerations on an individual
basis and taking into account the use of
each performers performances.
Justification
Amendment 12
Article 1 point 4
Article 10a paragraph 5 b (new)
Amendment
5b. With respect to the administration of
rights concerning on-demand services by
productions incorporating music from
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lawfully published phonograms, Member

States shall ensure that the rights of
performers and phonogram producers to
grant or refuse authorization for such use
may be exercised only through the
collecting society which has been
established for collecting and distributing
the remuneration for broadcasting such
phonograms.
Justification
the administrative difficulties for radio and television broadcasters to clear the necessary ondemand rights for their productions, in particular their archives. In order to achieve both
efficient rights management, as encouraged by Recital 26 of the 2001 Copyright (InfoSoc)
Directive, and a fair share for all right-holders also for the on-demand use of broadcast
productions, it is therefore appropriate to complement this remuneration regime by a
mandatory collective licensing scheme for such use.
Amendment 13
Article 1 point 4
Amendment

plurality of performers, they may

of Article 3(1) and (2) in their version
before the amendment by Directive
[//insert: Nr of this amending
directive]/EC, the performer and the
phonogram producer would be no longer
protected in regard of, respectively, the
fixation of the performance and the
phonogram, the phonogram producer no
longer offers copies of at least one version
quantity or makes available to the public,
by wire or wireless means, at least one
version of the phonogram, 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
request to the producer to do so, and if the
producer does not fulfil that request
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within a reasonable time, the performer

may terminate the assignment of rights in
that phonogram.
terminate their contracts on transfer or

assignment only jointly. If the contract on
transfer or assignment is terminated
pursuant to sentences 1 or 2, the rights of
the phonogram producer in the
phonogram shall expire.
Justification
It is reasonable that phonogram producers need make available in sufficient quantity to the
public one version of the phonogram in question.
Amendment 14
Article 1 point 4
Amendment
deleted

the performer and the phonogram
producer would be no longer protected in
regard of, respectively, the fixation of the
the phonogram producer in the
phonogram and the rights of the
performers in relation to the fixation of
their performance shall expire.
Justification
The "use it or lose it" clause is designed to protect the rights of performers, and to ensure that
phonographic producers cannot curtail those rights unfairly. Article 10, Paragraph 1,
Subparagraph 1 achieves this, and the further measures in Subparagraph 2 provide no
further benefit to the performers - and in many cases will lead to performers losing out.
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PROCEDURE
Title
References
COM(2008)0464 C6-0281/2008 2008/0157(COD)
JURI
Opinion by
CULT
2.9.2008
Drafts(wo)man
Date appointed
Christopher HeatonHarris
10.9.2008
6.11.2008
Date adopted
2.12.2008
+:
:
0:
Maria Badia i Cutchet, Katerina Batzeli, Ivo Belet, Guy Bono, MarieHlne Descamps, Vra Flasarov, Milan Gaa, Vasco Graa Moura,
Christopher Heaton-Harris, Luis Herrero-Tejedor, Ruth Hieronymi,
Manolis Mavrommatis, Doris Pack, Zdzisaw Zbigniew Podkaski,
Christa Prets, Karin Resetarits, Helga Trpel, Thomas Wise
Nina kottov, Lszl Tks, Ewa Tomaszewska, Cornelis Visser
PE414.350v02-00
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20
0
2
58/59
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PROCEDURE
Title
References
COM(2008)0464 C6-0281/2008 2008/0157(COD)
Date submitted to Parliament
16.7.2008
JURI
2.9.2008
Committee(s) asked for opinion(s)

ITRE
2.9.2008
Rapporteur(s)
Date appointed
Brian Crowley
22.9.2008
4.11.2008
Date adopted
12.2.2009
+:
:
0:
Alin Lucian Antochi, Marek Aleksander Czarnecki, Bert Doorn,

Monica Frassoni, Giuseppe Gargani, Lidia Joanna Geringer de
Oedenberg, Neena Gill, Klaus-Heiner Lehne, Alain Lipietz, Manuel
Medina Ortega, Aloyzas Sakalas, Diana Wallis, Rainer Wieland,
Jaroslav Zvina, Tadeusz Zwiefka
Sharon Bowles, Mogens Camre, Brian Crowley, Jean-Paul Gauzs,

Kurt Lechner, Arlene McCarthy, Georgios Papastamkos, Jacques
Toubon

for the final vote
Michael Cashman, Andrs Gyrk, Helga Trpel
RR\414350EN.doc
IMCO
2.9.2008
CULT
2.9.2008
20.1.2009
17
5
2
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EUROPEAN PARLIAMENT

Symbols for procedures

(The type of procedure depends on the legal basis proposed by the

Amendments to a legislative text

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

(5) Performers generally start their careers

(5) Performers generally start their careers

that occur during their lifetimes.

(8) Upon entering into a contractual

(8) Upon entering into a contractual

(9) For the sake of legal certainty it

(9) Member States should remain free to

implementing the directive shall continue

concluded before the extension of the

Proposal for a directive amending act

(12) The first transitional accompanying

(14a) In order to rebalance contracts

defined deductions is paid to performers

Text proposed by the Commission

(17) Since the objectives of the proposed

(17) Since the objectives of the proposed

accompanying measures cannot be

accompanying measures cannot be

(19) Consequently, the harmonisation of

(19) Consequently, the harmonization of

2. Paragraphs 3 to 6 of this article shall

2. Paragraphs 3 to 7 of this Article shall

Member States may provide that a

revenue, during the year preceding that

5. Member States may regulate whether

With respect to the administration of

established for collecting and distributing

Text proposed by the Commission

6. If, after the moment at which, by virtue

6. If, after the moment at which, by virtue

If, one year after the moment at which, by

If, five years after the moment at which, by

the performer and the phonogram producer

the performer and the phonogram producer

protection may ultimately only be beneficial to a minority of featured artists.

creative industries based on intellectual property are generating an increasing percentage of

for the Committee on Legal Affairs

(i) Extension of the scope by including audiovisual performers

(9) For the sake of legal certainty it

(9) In order to ensure that performers,

(12) The first transitional accompanying

small and medium sized phonogram

(13) Those monies should be reserved

(13) Those monies should be reserved

all rights holders. To achieve that goal,

the extended period.

(1) The second sentence of Article 3(1) is

(1) At the end of Article 3(1) the following

"However, if at the end of this period, a

- if a fixation of the performance

or the first such communication to the

(2) In the second and third sentence of

1. In the absence of clear indications to

1. A contract, concluded before [insert date

Text proposed by the Commission

2. Paragraphs 3 to 6 of this article shall

2. Where a performer has not transferred

Proposal for a directive amending act