Term of protection of related rights
© Nantia P.Kyprouli
Attorney at law, PhD, DIONYSOS
November 2007

International and EU rules
 The Rome Convention provides for a minimum duration of 20 years of
related rights (performers’, phonogram producers’ & broadcasting
organisations’ rights) from the fixation, the performance, the broadcast.
 The TRIPS Agreement provides for a minimum term of 50 years for
performers and producers of phonograms from fixation or performance
and 20 years from broadcast for broadcasting organisations.
 WPPT (WIPO Treaty for performances and phonograms (it does not
cover the broadcasting organisations) provides for 50 years from fixation
(for performers), or publication or if not published, from fixation (for
phonogram producers). – Until now, only phonogram producers are dealt
with.
 EU Term Directive (93/98, 116/2006) provides for a period of 50 years a) for performers: from the performance, of if it was published or
communicated within this period, from first publication, or first
communication to the public of the fixed performance, - b) for
phonogram and film producers: from fixation, or from first lawful
publication or form first lawful communication if happened within this
period– c) for broadcasters from first transmission
 Infosoc Directive (2001/29) changes the triggering event from which the
term is calculated in respect of phonogram producers, that is from
fixation, or from first lawful publication, or if no lawful publication has
taken place, from the first lawful communication to the public.

Greek provision
 For performers: Greek law provides for a protection of 50 years from the
performance, or the first lawful publication or communication to the
public, but this period may not be less than the performer’s lifetime (art.
52 c law 2121/1993).
 Some say that this is not in accordance with the EU Directive, but this is
not true. The Greek provision is fully in accordance with the European
legislation. EU Directive 93/98 provides that if a member state had set a
more extended term of protection before 1st July 1995, the member state
is entitled to retain this extended term. This exactly is the case with Greek
Law, as its provisions are dated since 1993.

ECJ- Phil Collins case
 It is not without interest to note that all European artists may benefit
from the protection granted by the provisions of the Greek law, invoking
the general rule of non-discrimination between European citizens, as
elaborated in the Phil Collins ECJ decision (joined cases C-92/92 and C326/92 Phil Collins v. Imtrat Handels and Patricia Im v. EMI, ECR 1993
I-5145).

Legal / economic arguments
 For performers : it has long been argued that performances are similar to
creative works. The difference seems to be insignificant especially for
derivative authors, as translators, screenwriters and other creative
adaptors. On the other hand, financially, there are many concerns
regarding a number of famous artists that they will soon see their first
recordings fall into the public domain.
 For producers: Producers have been accorded a protection not of moral
or artistic nature, but purely of financial nature, meaning, protection of
their investment for deploying their recording equipment and for
employing their technically skilled personnel. The same applies to the
broadcasting organisations.

Economic analysis
 To what extent a term extension may promote the goals of related rights
of a) phonogram producers, such as the ability to recoup investment, and
b) of performers i.e. to receive an adequate income, and whether and to
what extent a term extension may provide an incentive for phonogram
producers to invest in new talent and repertoire and what impact will
have c) on the access to and the diversity of culturally important
repertoire, on competition, innovation, on transaction costs and consumer
prices.

Study for the phonogram
 For phonogram producers: Although it is extremely difficult to find
average costs (producing and marketing costs) in sound recordings, due
to the huge disparities between large and small productions, between
different genres of music (f.ex. for classic music you have to recruite a
philharmonic orchestra, while for an electronic dance music you mainly
produce it on a computer) we will use the conclusions of an economic
analysis carried out by OECD.
 According to this analysis, one first concludes that, on the one hand, the
productions’ cost has decreased extremely over the past three decades,
due to the advancement of technologies (especially due to digital studio
techniques permitting the production for less than 1.000 euros per day,
while before, the studios charged several thousands euros per day), on the
other hand, the promotion and marketing cost is far more high in
economic figures. So, it is estimated that a phonogram producer needs to
sell 11.000 CDs to recoup its investment (both production and
marketing/promoting), assuming a price published to dealer is 10 euros
per CD.
 So, how may years would be the average time needed to sell 11.000 CDs?
Again of course, there is a huge variation between popular and nonpopular artists, and between classical and modern music. Such an
assessment is again difficult, but, however, what is known is that a life
cycle of a sound recording is, according to diffusion rates, from 6 to 12
months. According to this assessment, 50 years of protection is more than
enough for phonogram producers to recoup their investment.
 But it is true, that extending the period of protection will enhance
phonogram producers to invest in remastering, digitising and
remarketing older recordings in a new format and to new audiences,
especially though online music stores, which may contain and offer very
large catalogues, since they are not limited by physical retail space, and
thus, even if the majority of these recordings sell in very low individual
quantities, they add up to significant number of sales (the long tail effect
of digital distribution). To this, we should add the undeniable positive
effect to the revenues deriving from uses other than the sale of CDs,
especially from broadcasting, public performance and of course private
copy of phonograms.
 For performers: Due to the average life expectancy of human beings in
the European Union now days, the existing 50-year term of protection will
not always cover the lifetime of a performer.
 The argument of the “natural justice” is also very strong according to the
stakeholders arguing in favor of the extension, especially because of the
similarity of the artistic expression and creation.
 It is true though, that an extension of protection of performing artists
would practically, in the case of exclusive rights, benefit the producers,
since it is the producers that usually require a broad assignment of the
performers’ rights. Therefore, while extending the term of protection of
performers, it would be very important to provide for statutory measures
that protect the artists against overbroad transfers of rights.
 For producers/broadcasting organisations: it is debatable if the term of
protection should be extended to assist them to recoup their investments
of production of their phonograms, films or broadcasts, basically because
the rationale of related rights should not be to create a profit
maximization for the companies as such. For instance, one may argue that
all these investments are already included in the price of final product.
Further, it is hard to accept that producers base their present investment
decisions on prospects of exploitation that may arise in the distant future.
 So, we are of the view that persisting to emphasize the (poor) study results
on phonogram sales is erroneous. Film, broadcast, cable and public
performance rights may often prove far more profitable than the sale of
copies, so, by extending the term of protection, these benefits will be
evident both for artists and producers/exploiters. We should also point
out that the exploitation of the audiovisual works differs from the
exploitation of the phonograms, since f. ex. one may listen to a song many
times, buy the relevant CD, download the ringtone of the same song,
while scarcely anyone will really want to watch the same movie more than
once.

Costs of protection
 It is argued that, in principle, copyright adds to the costs of works that
reach the hands of the final consumer. But this, is true mostly for the
primary exploitation modes, meaning basically the sales of copies where
the protected work is embodied and not for the secondary ways of
exploitation. For example a TV station will have the same high profits by
advertisements shown during the broadcasting of a very popular film,
even if this has fallen into the public domain. Or, discotheque will charge
the same price on a drink, even if some songs communicated to the public
are not protected any more. Or, an Internet Service Provider will, again,
have gains from advertisements once it makes available to the public non
protected works.
 And of course, the alternatives to Copyright Protection, such as for
example, state pensions or subsidies to performers, will immediately
emerge immense administrative questions, not to mention problems of
political influence and equity between citizens.

EU competitiveness
 Failure to bring the term of protection in the EU in line with the US will
negatively affect the competitiveness of the European copyright content
industry. For example creators of sound recordings in USA (or other
countries with bigger term of protection such as Australia, Brazil,
Mexico), will receive revenues for longer periods than their colleagues in
the EU, and this will have a negative impact on the investment in
developing and marketing European talent. Further, the assets of the
European creative industries will be less valuated than the assets of the
north-American ones.

CONCLUSION
 Our view is that an extension of the period of protection of performers is
indispensable, not only because of the increase of the average life
expectancy but mainly, because of the constant reutilisation of existing
works and performances. Meaning that, since new technologies permit
new profitable uses of works and performances, related rights holders
and especially performers should have a share on this newly produced
profit. Otherwise, performers are bound to suffer substantial loss of
income. Besides, it is a way of reaching the right balance in terms of
compensating the righsholders for the loss of remuneration opportunities
resulted from the development of technology, espec. file sharing and
easiness of copying in the digital world.
 Further, abolishing the differences in the protection of related rights in
the EU and the US and adopting a harmonized term of protection
worldwide, is now more essential than ever due to the on line – worldwide dissemination of musical and audiovisual creations and relevant
artistic contributions. It is now of paramount importance, more than
ever, to have a world-wide uniform public domain. Different terms of
protection and discrepancies regarding the triggering events for the
commencement of the protected time create barriers to the free flow of
trade, frustrate the right holders and confuse the users.