Extension of the Term of Protection for Performaners: It's Just a Question of Time*
Tanya Wagenaar*
Lecturer, Nelson Mandela Metropolitan University
Frans Marx*
Lecturer, Nelson Mandela Metropolitan University
1. INTRODUCTION
Performers’ rights are aimed at the protection of a specific type of person, namely a performer, who participates in a performance. Whereas copyright protects the author of a work, performers’ rights protect the person who gives a rendition of this work.1 This rendition is known as a “performance” which can be defined as “the transitory activity of a human individual that can be perceived without the aid of technology and that is intended as a form of communication to others for the purpose of entertainment, education or ritual.”2
Both performers’ rights and copyright are members of the family intellectual property law.3 Copyright protects the rights of the owner to control the use of his work by granting the owner certain exclusive rights, while performers’ rights protect the individual who is interpreting the work. In other words, in the context of a sound recording, copyright will protect the producer of the sound recording (usually a recording company) as well as the rights holder(s) of the musical work, namely the composer4 and lyricist5 of the song. Performers’ rights protect the performing artist who performs the song.
Performers’ rights have been labelled with various titles, owing to their dependence on copyright. This dependence arises from the fact that since a performer performs an interpretation of a work in which copyright subsists, there cannot be a performance if there is no copyright protected work. As a result, performers’ rights have been referred to as “neighbouring rights”, “secondary rights” or “related rights” to copyright.6 Although these terms are not used in South African legislation, they all illustrate the concept that the rights accorded to performers are similar to but less than full copyrights. In fact, when compared to performers’ rights, the protection accorded copyright owners is substantially stronger in many areas, but this article will only focus on one discrepancy, namely the duration of protection. The article will discuss the development of this issue in the United Kingdom with a view to answering the question as to whether South Africa should extend the term of protection provided to performers.
2. CONTENT OF PERFORMERS’ RIGHTS
According to the South African Performers’ Protection Act,7 performers have the right to prevent anyone from broadcasting or communicating to the public his live performance8 and from making a recording of his live performance.9 A performer’s rights are infringed if anyone, without the performer’s consent, makes a copy of a recording of a performance if the original recording was made without the performer’s consent;10 the copy was made for purposes other than those for which the performer gave his consent originally;11 or the original recording was made in accordance with the so-called “fair use” provisions and the copy thereof is made for purposes not included within these provisions.12 Furthermore, performers are also beneficiaries
of rights in terms of which they are entitled to receive a royalty payable by broadcasters whenever a recording of their performance, published for commercial purposes, is broadcasted, transmitted in a diffusion service, or communicated to the public.13 This is more commonly known as the needletime right and is to be shared with the copyright owner of the sound recording, which is usually the recording company.14
One of the hallmarks of intellectual property law is that it grants the owner a limited time within which to exploit the right. After the time has lapsed, the article falls into the public domain and can be freely exploited by others.15 Composers and lyricists in South Africa are entitled to protection of their works, which includes the right to receive royalties for the public use of their works, for their lifetimes as well as 50 years beyond their deaths.16 This means that their heirs or assignees are entitled to receive these royalties for a further 50 years after the original songwriter has passed away. Dean avers that the term of protection granted to most forms of copyright is generous when compared to the duration of protection accorded other forms of intellectual property.17
In South Africa, performers and recording companies are currently only entitled to enforce their rights and receive royalties for a period of 50 years calculated from the end of the year in which the work was first performed or recorded.18 The discrepancy is obvious and the question asked by performers is why composers and lyricists of a song receive protection and royalties for their entire lifetime   which transfer to their heirs upon their death for a further 50 years, while performers of songs are only entitled to receive protection and royalties for 50 years from when the song was first performed or recorded. The result is an inequality between performers and authors, which leaves authors protected for their lifetimes and beyond while performers are left without pensions.19
3. HISTORICAL BACKGROUND
3.1. The Berne Convention
At international level, the Berne Convention for the Protection of Literary and Artistic Works, 1886 (the Berne Convention) was the first multilateral effort to address pressing copyright issues.20 This Convention created a union of states formed with the primary aim being “the protection of the rights of authors in their literary and artistic works.”21 Widely regarded as the oldest and largest method of protection for these works,22 it is seen by scholars of international law as “a breakthrough in the custom of international agreements generally, rather than merely with regard to intellectual property rights”.23 The Convention resulted in copyright laws in countries where previously none had existed24 and is still in force today.
Initially, performers sought protection in terms of the Berne Convention by asserting that they should be regarded as authors and their performances as works.25 Their plight drew sympathy, particularly in the years leading up to World War II, when it became apparent that unauthorised copying of musical works was endangering the recording industry.26 However, their claims were rejected internationally27 on the grounds that authors could only be those who created original works. Since a performer merely interprets a work already in existence, they could not be regarded as authors.28 Their efforts were not fruitless, however, and resolutions were adopted at subsequent revision conferences which provided that “participating governments consider what measures could be taken to protect the rights of performers” and that “studies be undertaken, particularly in respect of the protection of performers as a neighbouring right.”29 As a result, it was decided that protection of performers would have to occur outside the ambit of the Berne Convention.30 This paved the way for the enactment of the Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 (Rome Convention).
3.2. The Rome Convention
As already mentioned, the road leading to the conclusion of the Rome Convention began when it was determined that protection for the rights of performers would have to be achieved outside the auspices of the Berne Convention. In the decade following the Brussels Revision Conference of 1948, a series of meetings resulted in several draft conventions that were considered by the international community31 which ultimately led to the passing of the Rome Convention in 1961. The Rome Convention is a multilateral agreement enacted to protect the rights and interests of related rights holders, namely performers, producers of phonograms and broadcasting organisations. It is jointly administered by the World Intellectual Property Organisation (WIPO)32,the International Labour Organisation (ILO) and the United Nations Educational, Scientific, and Cultural Organisation (UNESCO).33 The central principle is that of national treatment which ostensibly means that once ratified, a contracting state is required to provide protection to foreign works to the same extent that nationals of its own state are protected.
With regard to the duration of protection, Article 14 of the Convention provides that performers are to be protected for a period of 20 years only, calculated from the end of the year the performance took place in, or was incorporated into a fixation. The Convention is also not retroactive, thus performances which took place before its implementation are not protected.34
It is opined that the minimum standards referred to above were designed to allow national laws of contracting states to go further in terms of the level of protection they provide to performers.35 “[I]t is always open to states, whether or not they are parties to the convention, to provide protection at a higher level than the conventional minima.”36
Regardless, the Convention has been severely criticised for the level of protection it provides, for the low number of adherents and for the allegation that the drafters may have disadvantaged performers by placing them in the same group under the same convention as phonogram producers and broadcasting organisations.37
Even though the protection levels under the Rome Convention are not considered to be as high and effective as those provided for under other conventions and treaties,38 it is still considered to be an important touchstone in the development of performers’ rights. Performers’ interests “took a significant step forwards”39 and as a result it is considered to be where the story of performers’ rights truly begins.40
Although South Africa has not acceded to the Rome Convention, Dean avers that the Performers’ Protection Act was clearly enacted with the view to enabling South Africa to accede to it at some point.41 In South African Broadcasting Corporation v Pollecutt42 Harms J stated that the intention of the Performers’ Protection Act was to give effect to this Convention.43 The Act embodies the sections of the Rome Convention that deals with the protection of performers and much of the terminology and phraseology of the Act relating to the protection of performers has been derived from the Convention.44
With regard to the duration of protection, the Performers’ Protection Act initially provided performers with a term of protection of 20 years calculated from the end of the year in which the performance first took place in or was incorporated in a sound recording. This was reflective of Article 14 of the Rome Convention.
The United Kingdom signed the Rome Convention on 26 October 1961 with ratification following on 30 October 1963.45 Its provisions were incorporated into the British Performers’ Protection Act of 1963 and provided for the same term of protection prescribed by the Convention, namely 20 years. The Act was subsequently repealed in 1988 with the enactment of the Copyright, Designs and Patents Act46 which provided protection to British performers as a related right to copyright.
3.3. The Term Directive of 1993
The United Kingdom’s Copyright, Designs and Patents Act was not the only form of statutory protection granted to performers. The executive body of the European Union, the Commission of the European Communities,47 began investigating ways in which to provide improved and uniform protection for related rights holders within the European Union as early as 1988.48 The result was several Council Directives which aimed to reconcile certain objectives within the member states of the European Union. From a British intellectual property law perspective these regulations amended and extended the Copyright, Designs and Patents Act insofar as it did not comply with relevant directives.
Several directives have been passed with a view to enhancing the protection granted to performers. Of specific relevance to this discussion is the Directive on the Duration of Copyright and Related Rights of 1993 (the Term Directive).49 The objective of this Directive was to harmonise the term of protection granted to copyright and certain related rights amongst European Union member states50. The term of protection of the rights of an author of a literary or artistic work subsisted for the life of the author and for a further 70 years after his death, irrespective of the date when the work was lawfully made available to the public.51 As far as related rights were concerned, Article 3(1) mandated that the term of protection must be 50 years for performances in sound recordings calculated from the end of the year in which the recording of the performance first took place, or the end of the year in which the recording of the performance was first released.52
The Directive was given effect in the United Kingdom on 1 January 1996 through the Duration of Copyright and Rights in Performances Regulations of 199553 and was incorporated into the Copyright, Designs and Patents Act by way of amendment as reflected in section 191 of the Act. Although the Directive has since been repealed by the Directive on the Term of Protection of Copyright and Certain Related Rights of 2006,54 no substantial changes were made to the term of protection afforded to performers.55
3.4 The TRIPS Agreement
In the years following the passing of the Rome Convention, the United States, Japan and the European Union submitted complaints that their business interests were being threatened through piracy and counterfeiting. Global corporate players were treating the world as one market, which required world-wide standards of intellectual property protection.56 As a result, many coherent proposals for the harmonisation of IP protection were advanced and the Uruguay Round of Multilateral Trade Negotiations to amend the General Agreement on Tariffs and Trade (GATT) negotiations were awaited with a great deal of optimism to see the adoption of an intellectual property agreement supportive of the corporate agenda.57 This round of negotiations took place in 1994 and resulted in the Agreement on Trade Related Aspects of Intellectual Property Rights of 1994 (the TRIPs Agreement), approved by Council Decision 94/800/EC and concluded within the framework of the World Trade Organisation (WTO).58 The agreement is annexed to, and forms a part of, the Marrakesh Agreement Establishing the WTO which was signed by 124 nations on 15 April 1994.59
One of the main shortcomings of the various intellectual property agreements which existed under the banner of WIPO is that they did not have adequate measures for ensuring that members give effect to them by providing the required level of protection at domestic level.   This was the
main motivation behind the adoption of the TRIPs Agreement, which does make provision for its enforcement by adherents.60
It is submitted that the TRIPs Agreement is arguably the most significant step forwards in the development of performers’ rights since the Rome Convention. With regard to the duration of protection it provides that:
The term of the protection available under this Agreement to performers and producers of phonograms shall last at least until the end of a period of 50 years computed from the end of the calendar year in which the fixation was made or the performance took place.61
This means that performers must be granted protection for a period of 50 years, an extension of the term provided for under the Rome Convention. Furthermore, Article 70(2) provides that protection is to be guaranteed retroactively.
Morgan writes that owing to the fact that it has a high level of international acceptance, the question of performers’ rights has progressed from being mainly a European concern to one affecting nearly all developed states.62 This signifies a far wider level of acceptance of this Agreement to that which was given to the Rome Convention.
South Africa assented to the WTO Agreement and therefore to the TRIPs Agreement in April 1994. In order to comply fully with the Agreement, the Intellectual Property Laws Amendment Act 38 of 1997 was enacted which brought about several amendments to the Performers’ Protection Act. Of relevance to this article is the fact that the duration of protection was extended from 20 to 50 years63 in accordance with Article 14(5) of the TRIPs Agreement. The duration of protection is still to be calculated from the end of the calendar year in which the performance first took place or was first incorporated in a sound recording. This is the current situation as far as the term of protection of performers in South Africa is concerned.
As a member of the European Union, the United Kingdom has been a member of the WTO since its enactment on 1 January 1995.64 Although the United Kingdom has ratified the TRIPs Agreement, the minimum standards provided for performers’ rights were already reflected in the Copyright, Designs and Patents Act. With regard to performers’ rights the Act has, therefore, remained unchanged as a result and still reflects that the term of protection granted to British performers is 50 years, calculated from the end of the year the performance first took place in or from when it was incorporated in a sound recording.
3.5 WIPO Performances and Phonograms Treaty (WPPT)
The inadequacies of the Rome Convention and the TRIPs Agreement were suffered by most of the rights holders they purported to protect, especially performers and producers of phonograms.65 In 1997, the Assistant Director General of WIPO, Mihaly Ficsor, stated that the organisation recognised two features regarding the development of related rights. Firstly, technological developments and secondly, a process of “guided development” as opposed to the implementation of new international norms. This “guidance” took the form of recommendations, principles and model provisions relating to neighbouring rights for legislators.66
The development of performers’ rights under the auspices of WIPO continued simultaneously with the negotiations that resulted in the WTO, and ultimately the TRIPs Agreement. In 1992, a Committee of Experts was established by the Assembly of the Berne Union to prepare a Possible Instrument (Treaty) for the Protection of Rights of Performers and Producers of Phonograms (the precursor to the WPPT). Its mandate extended to almost all areas of the protection of performers and producers of phonograms where the clarification of existing international norms and the establishment of new norms were needed.67 The progress of their work accelerated with the adoption of the TRIPs Agreement and on 20 December 1996 two agreements were signed at the Geneva Diplomatic Conference, namely the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).68 For the purposes of this discussion, we will focus attention only on the WPPT.
The adoption of the WPPT brought about several main advances in the area of performers’ rights. The most important of these is that performers are accorded with moral rights69 as well as certain exclusive rights70 which were not previously provided for by preceding international instruments. Lastly, Article 18 provides that member states are required to provide enforcement measures against the circumvention of anti-copying measures that facilitates the practise of bootlegging.71 The duration of these rights lasts for a period of 50 years from the end of the year in which the performance was fixed in a phonogram,72 substantially the same as the term accorded by the TRIPs Agreement. 
South Africa played an active role in the conclusion of the WPPT73 as chair for technical matters relating to the African group of states and vice chair of the Drafting Committee.74 Although South Africa signed the WPPT on 12 December 1997 it has not yet ratified it. It is probable that South Africa will accede to it at some point in the future in which case the necessary amendments will have to be made to the Performers’ Protection Act.75
After signing the WPPT, the European Union subsequently issued the Directive on the Harmonising of Certain Aspects of Copyright and Related Rights in the Information Society76 in 2001 which required member states to reform their domestic laws to comply with this Directive. The United Kingdom enacted the Copyright and Related Rights Regulations, 200377 in order to give effect to this Directive. Although the Copyright, Designs and Patents Act already provided protection similar to many of the obligations prescribed by the Directive, these Regulations amended the Act insofar as it does not comply with the Directive.78
When compared to the term of protection granted to British songwriters, who are entitled to protection for their lifetimes and for a further 70 years beyond their deaths,79 the inequality felt by performers becomes obvious. This has led to a furious debate that has raged in the United Kingdom for the better part of the last eight years. Not only is the term accorded performers far inferior to the term assigned to the works of copyright owners,80 it ostensibly means that recordings that represent the musical heritage of the United Kingdom will continually fall into the public domain. For instance, this year the entire Beatles’ catalogue and the early Rolling Stones’ catalogue will both become freely available for unlicensed copies to be produced and sold throughout Europe.81 The direct result of this is loss of revenue to both recording companies and performers of these works.
This loss of income does not seem as urgent for “superstars” such as Cliff Richards or the surviving members of the Beatles, but this expiry is serious for the thousands of session musicians who contributed to sound recordings in the late 1950s and 1960s. They will lose this income stream at the time they need it most, exacerbated by the fact that online retailing promises a new source of income.82
4. THE EUROPEAN DEBATE CONTINUES
4.1 The situation in the United Kingdom
4.1.1 The Gowers Review of Intellectual Property
In 2005, the British government announced in its General Election manifesto that it was committed to modernising “copyright and other forms of protection of intellectual property rights so that they are appropriate for the digital age”.83 Owing to the fact that protection for sound recordings in   most other countries exceeds that of the United Kingdom84 the British Phonographic Industry (BPI) was prompted to state that the European Union was “out of sync with the rest of the world”.85 In December 2005 the British Chancellor of the Exchequer, Gordon Brown, commissioned a review of intellectual property rights in Great Britain. Andrew Gowers86 was asked to head the review, which subsequently became known as the Gowers Review of Intellectual Property. One of the issues raised by the Review was whether the current term of protection on performers’ rights in sound recordings was adequate.
The burning issue relates to loss of income that performers faced when the term within which they are entitled to royalties for the broadcasting of their performances expires. Once this happens, these performances fall into the public domain and the performer of the work is no longer entitled to royalties. Many recording artists are aggrieved by the disparity between the protection granted to performers and that which is granted to authors. This debate is dominated by several strongly supported views, opinions and positions.87
Representatives from Electrical and Music Industries (EMI) and Phonographic Performance Limited (PPL)88 argued for an extension to the term of protection on the grounds that it would generate incentives to the creative process.89 Dissenters argued that this view was not persuasive and observed that “those who create works – whether literary, visual, or musical – will do so regardless of the legal framework that is in place, simply because artistic endeavour knows no
economic calculus for its impetus”90 and economic rights for performers did not exist in its current form until 1996.91
The arguments in favour of a term extension that were the point of focus in the Review can be summarised as follows: Firstly, there is a need for parity with other countries that protect sound recordings for a longer term than the United Kingdom does,92 particularly with the United States of America where performers and recording companies receive remuneration for very limited uses of their performances93 for a period of 95 years.94 95
Secondly, the disparity between the term of protection offered to copyright owners and that which is offered to performers is unfair.96 In view of the development music has enjoyed over the past few decades, performers submit that their contributions are at least equal to, or in some cases, more pronounced than that of the authors (composer, lyricist, the photographer/art designer of the cover, and the writer of the sleeve notes). It is hard to believe that the person who designs the compact disc (CD) cover enjoys greater protection than the musicians who performed on the recordings.97 With regard to the duration of moral rights, British performers are only protected for 50 years from when the performance was released.98 This means performers can be faced with distortions and mutilations of their earlier performances during their lifetimes, while authors enjoy protection of their moral rights for their entire lifetimes.99
Thirdly, under current conditions, the ability of the music industry to finance new talent has been severely undermined by online piracy which has accounted for significant losses.100 An extension of the term of protection would encourage more investment in new music as there would be a longer period of time to recoup the costs of any initial outlay.101
Fourthly, the prevailing view is that consumers may not have access to the widest choice of music at reasonable prices,102 and that such an extension would increase the number of works available to the public.103
Lastly, a term increase would maintain the positive trade balance in the United Kingdom.104
The Gowers Review was released in December 2006 and recommended that the European Union retain the duration of protection on sound recordings and performers’ rights to 50 years from the date of release.105 This was in line with the Directive on the Term of Protection of Copyright and Certain Related Rights106 of 2006 (the Term Directive) which codified the original Term Directive of 1993.
All the above-mentioned arguments in favour of extending the term of protection were systematically refuted in the Review.   With regard to the first argument, the Review averred that the breadth of protection offered to performers in the United Kingdom justified a shorter term of protection as opposed to that offered in other countries. This is illustrated by the fact that although the term is only 50 years in the United Kingdom, performers receive royalties for almost all of the public performances of their works, while in the United States of America, almost 70% of eateries and drinking establishments are not required to pay royalties to performers. The same exception applies to roughly 45% of all shops. In addition, performers in the United States only receive royalties for airplay on digital radio while performers in the United Kingdom receive royalties for all radio performances.107
In answering the question of unfairness between copyright owners and performers, the Review maintained that it was unclear that a term extension from 50 to 70 or 95 years would rectify the unequal treatment of performers and producers from copyright owners, who benefit from life plus 70 years of protection.108
The Review further maintained that current incentives to the creation of new material in terms of the Copyright, Designs and Patents Act were adequate on the grounds that there are a large number of music groups already creating music without any expectation of financial return. Dave Rowntree, a musician of the band Blur, commented that he had: “never heard of a single one [band] deciding not to record a song because it will fall out of copyright in ‘only’ fifty years.
The idea is laughable.”109 In addition, the Review maintained that a term extension would not provide incentives to invest as revenue earned so far into the future will have no effect on current spending decisions.110
With regard to the argument that a term extension would increase the number of works available to the public, the Review countered by alleging that if a term extension was introduced, follow- on creators in the future would have to negotiate licenses to use the works in question during this extended time. This would have the following potential implications, which could have negative effects for all performers: a) The estates and heirs of performers would be able to prevent such usage rights; and b) finding rights holders would be problematic.111
Lastly, the Review concluded that a term extension would more likely have a negative effect on the balance of trade in the United Kingdom and on consumers. This is owing to the observation that although the British music industry is very successful, the United Kingdom is also a large importer of music. This means that the extra revenue obtained from the sale of music would be remitted overseas, a fact that would not reflect favourably on the trade balance in the United Kingdom.112
The Review concluded that the arguments advanced by the various interested parties in favour of a term extension were not convincing and that the term of protection accorded to performers should remain 50 years.113
4.1.2 Post-Gower Review developments
Despite the outcome of the Gowers Review, performer and industry lobbying continued. Immediately after the release of the Review Paul McCartney, Cliff Richard, U2, Yoko Ono, Barry Gibb, Katie Melua, Cerys Matthews and over 4,500 lesser known artists signed an advertisement published in the Financial Times contesting the findings of the Review and calling for an extension of the term of protection to 95 years.114 The advertisement demanded “fair play for musicians” which highlighted the efforts of the so-called “Beatles Extension”, which was a popular nomenclature for the term extension campaign. If successful, the endeavour would guarantee that artists receive royalties and compensation payments for the unlawful private copying of their performances for their entire lifetimes.115 Cliff Richard stated:
I’m absolutely fed up with singing Living Doll116 but I have sung it constantly since 1959 because every time I sing it live it generates sales of the original record and royalties to me.117
Well-known performers would not be the only artists to benefit from a term extension. Countless session musicians who have contributed to the musical heritage of the United Kingdom will also benefit from a term extension.118
Herbie Flowers, who played the bass guitar on Lou Reed’s recording of Walk on the Wild Side
and David Bowie’s Space Oddity stated:
The term of protection for performers has not kept up with life expectancy and it is high time it was changed. I played on a couple of very successful tracks, and it would be unfair for me to stop receiving income for these performances after 50 years – probably just at the time when I will need it most.119
The Select Committee’s Report of the House of Commons in 2006120 entitled New Media and Creative Industries: Fifth Report of Session 2006-07, expressed opposing views to those contained in the Gowers Review. This is illustrative of the fierce debate between pro-extension lobbyists and anti-extension activists. In the Report the position of a songwriter who retained copyright for his entire lifetime and 70 years beyond his death, was compared to that of a recording artist who only profited from 50 years of protection from the date the recording was released. The Report questioned why a songwriter should receive greater protection than the artist when each contributed, in most cases, equally to the eventual recording. The Report stated: [N]obody would deny that the voices of Tina Turner or Frank Sinatra were as important to the success of What’s love got to do with it and New York New York as the melodies or arrangements of the songs themselves. They are both unique performers whose energy, persona and vocal styles give them and their songs huge appeal.121
The opposite view is that a composer’s composition is not always associated with a particular recording artist which has led to heated arguments on how to measure success and style.122
Following the Select Committee’s Report, a Review by the House of Commons, Culture, Media and Sport commissioned by the United Kingdom Treasury in May 2007 concluded that while the Gowers Review was thorough, it appeared to have been based entirely on economic considerations. The MPs stated:
Given the strength and importance of the creative industries in the UK, it seems extraordinary that the protection of intellectual property rights should be weaker here than in many other countries whose creative industries are less successful.123
The Review recommended that the British government should put pressure on the European Community to extend the term of protection to at least 70 years.124
4.2 The situation in the European Union
4.2.1 Commission of the European Communities
In February 2008 the European Commissioner for the Internal Market announced his intention to put forward a proposal that the term of protection for European performers should be increased to 95 years from the date of release of the work. He asserted that the proposal should not have any negative effects on consumer prices and that there should also not be any negative impact on Europe’s external trade balance. He observed that performers should no longer be the “poor cousins” of the music industry and stated:
I strongly believe that copyright protection for Europe’s performers represents a moral right to control the use of their work and earn a living from their performances. I have not seen a convincing reason why a composer of music should benefit from a term of copyright which extends to the composer’s life and 70 years beyond, while the performer should only enjoy 50 years, often not even covering his lifetime. It is the performer who gives life to the composition and while most of us have no idea who wrote our favourite song – we can usually name the performer.125
Furthermore, since performers begin their careers in their early to mid-20s, many of them would be in their 70s when their royalties dried up. Given the life expectancy in the European Union (75 years for men and 81 years for women) this means that performers will no longer receive an income from their performances, at a time when they are most likely to need it.126
Following this, a commission survey conducted by the Commission of the European Communities concluded in April 2008 that there were general, specific and operational objectives to be achieved for the benefit of performers through a term extension.
The general objective related to the promotion of music production throughout Europe by ensuring a sustainable level of creative processes.127 Three specific objectives were identified, namely, to:
•	Contribute to the enhancement of the welfare of performers by ensuring that they receive just reward for their creativity throughout their lives;
•	Contribute to the enhancement of the competiveness of the European music industry by equipping the industry to face the onslaught of piracy; and
•	Increase available music by allowing the public access to a large and diverse range of music.128
With regard to the operational objectives, the following were highlighted:
•	Gradually align protection accorded to authors and performers so that performers are not treated as second tier contributors to cultural diversity when compared to authors;
•	Incremental increase in the remuneration afforded performers from as many different sources as possible in order to alleviate their difficult financial situation, especially during their retirement years;
•	Diminish the discrepancies between the European Union and American markets regarding protection which should encourage investment and production of music in Europe;
•	Enhance availability of music at reasonable prices which should encourage the creation of music; and
•	Encourage the digitisation of back catalogues of music in order to ensure that the widest selection choice possible is made available to consumers.129
In July 2008 the European Committee announced its proposal to bring the protection term of performers in line with that of copyright owners by extending the term to 95 years.130 This would enable performers to earn an income for at least their lifetime and would allow producers to adapt to the rapidly changing business environment by maintaining their investment levels in new music.131 Despite the European Union recommendations on this issue, the British government continued to oppose any such increase in the term of protection, preferring to consider an increase to 70 years instead. The argument was that a period of 95 years is disproportionately long but that a performer should be able to enjoy the fruits of his labour for at least his entire lifetime.132
4.2.2 The “Big Four” argument
Since a term extension would benefit the owners of sound recordings, namely recording companies, as well as those who perform on the sound recordings,133 the principle concerns centred on “who gets paid”. Industry lobbyists claim that a term extension would benefit performers’ and session musicians, while those who oppose a term extension argue that instead of benefitting performers, millions of Euros would be pocketed by the world’s four largest record labels, namely Universal, BMG, Sony and Warner Brothers. A MEP of the German Green Party stated that: “[t]he ghost of the big four is behind all the recommendations we have at the moment. It is very important to put an end to this directive.”134
Claims by the European Commissioner that a term extension would result in session musicians earning an additional €2,000 per annum135