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11.10.2011 Official
Journal
of
the
European
Union
L
265/1
I
(Legislative acts)
DIRECTIVES
DIRECTIVE 2011/77/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 27 September 2011
amending Directive 2006/116/EC on the term of protection of copyright and certain related rights
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
(4) The
socially
recognised
importance
of
the
creative
EUROPEAN UNION,
contribution of performers should be reflected in a
level of protection that acknowledges their creative and
artistic contribution.
Having regard to the Treaty on the Functioning of the European
Union, and in particular Articles 53(1), 62 and 114 thereof,
(5) Performers
generally
start
their
careers
young
and
the
current term of protection of 50 years applicable to
Having regard to the proposal from the European Commission,
fixations of performances often does not protect their
performances for their entire lifetime. Therefore, some
performers face an income gap at the end of their
Having regard to the opinion of the European Economic and
lifetime. In addition, performers are often unable to
Social Committee (
rely on their rights to prevent or restrict an objectionable

1 ),
use of their performances that may occur during their
lifetime.
Acting in accordance with the ordinary legislative procedure ( 2 ),
(6) The
revenue
derived
from
the
exclusive
rights
of
repro
Whereas:
duction and making available, as provided for in
Directive 2001/29/EC of the European Parliament and
of the Council of 22 May 2001 on the harmonisation
of certain aspects of copyright and related rights in the
(1) Under
Directive 2006/116/EC of the European
information society ( 4 ), as well as fair compensation for
Parliament and of the Council ( 3 ), the term of protection
reproductions for private use within the meaning of that
for performers and producers of phonograms is 50 years.
Directive, and from the exclusive rights of distribution
and rental within the meaning of Directive 2006/115/EC
of the European Parliament and of the Council of
(2) In
the
case
of
performers
this
period
starts
with
the
12 December 2006 on rental right and lending right
performance or, when the fixation of the performance
and on certain rights related to copyright in the field
is lawfully published or lawfully communicated to the
of intellectual property
( 5 ), should be available to
public within 50 years after the performance is made,
performers for at least their lifetime.
with the first such publication or the first such communi
cation to the public, whichever is the earliest.
(7) The
term
of
protection
for
fixations
of
performances
and
for phonograms should therefore be extended to 70
(3)
For phonogram producers the period starts with the
years after the relevant event.
fixation of the phonogram or its lawful publication
within 50 years after fixation, or, if it is not so published,
its lawful communication to the public within 50 years
after fixation.
(8)
The rights in the fixation of the performance should
revert to the performer if a phonogram producer
( 1 ) OJ C 182, 4.8.2009, p. 36.
refrains from offering for sale in sufficient quantity,
( 2 ) Position of the European Parliament of 23 April 2009 (OJ C 184 E,
8.7.2010, p. 331) and Decision of the Council of 12 September
2011.
( 4 ) OJ L 167, 22.6.2001, p. 10.
( 3 ) OJ L 372, 27.12.2006, p. 12.
( 5 ) OJ L 376, 27.12.2006, p. 28.

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L 265/2
EN
Official Journal of the European Union
11.10.2011
within the meaning of the International Convention on
contribute where such payments would appear unreas
the Protection of Performers, Producers of Phonograms
onable in relation to the costs of collecting and admin
and Broadcasting Organisations, copies of a phonogram
istering such revenue.
which, but for the term extension, would be in the public
domain, or refrains from making such a phonogram
available to the public. That option should be available
on expiry of a reasonable period of time for the
(13) However,
Article
5
of
Directive
2006/115/EC
already
phonogram producer to carry out both of these acts of
grants performers an unwaivable right to equitable
exploitation. The rights of the phonogram producer in
remuneration for the rental of, inter alia, phonograms.
the phonogram should therefore expire, in order to avoid
Likewise, in contractual practice performers do not
a situation in which these rights would coexist with those
usually transfer or assign to phonogram producers their
of the performer in the fixation of the performance while
rights to claim a single equitable remuneration for broad
the latter rights are no longer transferred or assigned to
casting and communication to the public under
the phonogram producer.
Article 8(2) of Directive 2006/115/EC and to fair
compensation for reproductions for private use under
point (b) of Article 5(2) of Directive 2001/29/EC.
Therefore, in the calculation of the overall amount to
(9) Upon
entering
into
a
contractual
relationship
with
a
be dedicated by a phonogram producer to payments of
phonogram producer, performers normally have to
the supplementary remuneration, no account should be
transfer or assign to the phonogram producer their
taken of revenue which the phonogram producer has
exclusive rights of reproduction, distribution, rental and
derived from the rental of phonograms, of the single
making available of fixations of their performances. In
equitable remuneration received for broadcasting and
exchange, some performers are paid an advance on
communication to the public or of the fair compensation
royalties and enjoy payments only once the phonogram
received for private copying.
producer has recouped the initial advance and made any
contractually defined deductions. Other performers
transfer or assign their exclusive rights in return for a
one-off payment (non-recurring remuneration). This is
(14) A second accompanying measure designed to rebalance
particularly the case for performers who play in the back
contracts whereby performers transfer their exclusive
ground and do not appear in the credits (non-featured
rights on a royalty basis to a phonogram producer,
performers) but sometimes also for performers who
should be a ‘clean slate’ for those performers who have
appear in the credits (featured performers).
assigned their above-mentioned exclusive rights to
phonogram producers in return for royalties or remun
eration. In order for performers to benefit fully from the
extended term of protection, Member States should
ensure that, under agreements between phonogram
(10) In
order
to
ensure
that
performers
who
have
transferred
producers and performers, a royalty or remuneration
or assigned their exclusive rights to phonogram
rate unencumbered by advance payments or
producers actually benefit from the term extension, a
contractually defined deductions is paid to performers
series of accompanying measures should be introduced.
during the extended period.
(11) A
first
accompanying
measure
should
be
the
imposition
(15) For
the
sake
of
legal
certainty
it
should
be
provided
that,
on phonogram producers of an obligation to set aside, at
in the absence of clear indications to the contrary in the
least once a year, a sum corresponding to 20 % of the
contract, a contractual transfer or assignment of rights in
revenue from the exclusive rights of distribution, repro
the fixation of the performance concluded before the
duction and making available of phonograms. ‘Revenue’
date by which Member States are to adopt measures
means the revenue derived by the phonogram producer
implementing this Directive shall continue to produce
before deducting costs.
its effects for the extended term.
(12) Payment
of
those
sums
should
be
reserved
solely
for
the
(16) Member States should be able to provide that certain
benefit of performers whose performances are fixed in a
terms in those contracts which provide for recurring
phonogram and who have transferred or assigned their
payments can be renegotiated for the benefit of
rights to the phonogram producer in return for a one-off
performers. Member States should have procedures in
payment. The sums set aside in this manner should be
place to cover the eventuality that the renegotiation fails.
distributed to non-featured performers at least once a
year on an individual basis. Such distribution should be
entrusted to collecting societies and national rules on
non-distributable revenue may be applied. In order to
(17) This Directive should not affect national rules and
avoid the imposition of a disproportionate burden in
agreements which are compatible with its provisions,
the collection and administration of that revenue,
such as collective agreements concluded in Member
Member States should be able to regulate the extent to
States between organisations representing performers
which micro-enterprises are subject to the obligation to
and organisations representing producers.

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EN
11.10.2011 Official
Journal
of
the
European
Union
L
265/3
(18) In some Member States,
musical compositions with
following persons to survive, whether or not those persons
words are given a single term of protection, calculated
are designated as co-authors: the author of the lyrics and the
from the death of the last surviving author, while in
composer of the musical composition, provided that both
other Member States separate terms of protection apply
contributions were specifically created for the respective
for music and lyrics. Musical compositions with words
musical composition with words.’.
are overwhelmingly co-written. For example, an opera is
often the work of a librettist and a composer. Moreover,
in musical genres such as jazz, rock and pop music, the
(2) Article 3 shall be amended as follows:
creative process is often collaborative in nature.
(a) in paragraph 1, the second sentence shall be replaced by
(19) Consequently, the harmonisation of the term of
the following:
protection in respect of musical compositions with
words the lyrics and music of which were created in
order to be used together is incomplete, giving rise to
‘However,
obstacles to the free movement of goods and services,
such as cross-border collective management services. In
order to ensure the removal of such obstacles, all such
— if a fixation of the performance otherwise than in a
works in protection at the date by which the Member
phonogram is lawfully published or lawfully
States are required to transpose this Directive should
communicated to the public within this period, the
have the same harmonised term of protection in all
rights shall expire 50 years from the date of the first
Member States.
such publication or the first such communication to
the public, whichever is the earlier,
(20) Directive
2006/116/EC should therefore be amended
accordingly.
— if a fixation of the performance in a phonogram is
lawfully published or lawfully communicated to the
public within this period, the rights shall expire 70
(21) Since the objectives of the accompanying measures
years from the date of the first such publication or
cannot be sufficiently achieved by the Member States,
the first such communication to the public,
inasmuch as national measures in that field would
whichever is the earlier.’;
either lead to distortion of competition or affect the
scope of exclusive rights of the phonogram producer
which are defined by Union legislation, and can
(b) in the second and third sentences of paragraph 2, the
therefore be better achieved at Union level, the Union
number ‘50’ shall be replaced by ‘70’;
may adopt measures, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty on
European Union. In accordance with the principle of
(c) the following paragraphs shall be inserted:
proportionality, as set out in that Article, this Directive
does not go beyond what is necessary in order to achieve
those objectives.
‘2a. If,
50
years
after
the
phonogram
was
lawfully
published or, failing such publication, 50 years after it
was lawfully communicated to the public, the
(22) In
accordance
with
point
34
of
the
interinstitutional
phonogram producer does not offer copies of the
agreement on better law-making ( 1 ), Member States are
phonogram for sale in sufficient quantity or does not
encouraged to draw up, for themselves and in the
make it available to the public, by wire or wireless
interests of the Union, their own tables which will, as
means, in such a way that members of the public
far as possible, illustrate the correlation between this
may access it from a place and at a time individually
Directive and their transposition measures, and to make
chosen by them, the performer may terminate the
them public,
contract by which the performer has transferred or
assigned his rights in the fixation of his performance
HAVE ADOPTED THIS DIRECTIVE:
to a phonogram producer (hereinafter a “contract on
transfer or assignment”). The right to terminate the
contract on transfer or assignment may be exercised if
Article 1
the producer, within a year from the notification by the
performer of his intention to terminate the contract on
Amendments to Directive 2006/116/EC
transfer or assignment pursuant to the previous
Directive 2006/116/EC is hereby amended as follows:
sentence, fails to carry out both of the acts of exploi
tation referred to in that sentence. This right to
terminate may not be waived by the performer.
(1) The following paragraph shall be added to Article 1:
Where a phonogram contains the fixation of the
performances of a plurality of performers, they may
terminate their contracts on transfer or assignment in
‘7. The term of protection of a musical composition with
accordance with applicable national law. If the contract
words shall expire 70 years after the death of the last of the
on transfer or assignment is terminated pursuant to this
paragraph, the rights of the phonogram producer in the
( 1 ) OJ C 321, 31.12.2003, p. 1.
phonogram shall expire.

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L 265/4
EN
Official Journal of the European Union
11.10.2011
2b. Where
a
contract
on
transfer
or
assignment
gives
1 November 2013, and to musical compositions with
the performer a right to claim a non-recurring remun
words which come into being after that date.
eration, the performer shall have the right to obtain an
annual supplementary remuneration from the
phonogram producer for each full year immediately
The first subparagraph of this paragraph shall be without
following the 50th year after the phonogram was
prejudice to any acts of exploitation performed before
lawfully published or, failing such publication, the
1 November 2013. Member States shall adopt the
50th year after it was lawfully communicated to the
necessary provisions to protect, in particular, acquired
public. The right to obtain such annual supplementary
rights of third parties.’.
remuneration may not be waived by the performer.
(4) The following Article shall be inserted:
2c. The
overall
amount
to
be
set
aside
by
a
phonogram producer for payment of the annual supple
mentary remuneration referred to in paragraph 2b shall
‘Article 10a
correspond to 20
% of the revenue which the
phonogram producer has derived, during the year
Transitional measures
preceding that for which the said remuneration is
1. In
the
absence
of
clear
contractual
indications
to
the
paid, from the reproduction, distribution and making
contrary, a contract on transfer or assignment concluded
available of the phonogram in question, following the
before 1 November 2013 shall be deemed to continue to
50th year after it was lawfully published or, failing such
produce its effects beyond the moment at which, by virtue
publication, the 50th year after it was lawfully
of Article 3(1) in the version thereof in force on 30 October
communicated to the public.
2011, the performer would no longer be protected.
Member States shall ensure that phonogram producers
2. Member
States
may
provide
that
contracts
on
transfer
are required on request to provide to performers who
or assignment which entitle a performer to recurring
are entitled to the annual supplementary remuneration
payments and which are concluded before 1 November
referred to in paragraph 2b any information which may
2013 can be modified following the 50th year after the
be necessary in order to secure payment of that remun
phonogram was lawfully published or, failing such publi
eration.
cation, the 50th year after it was lawfully communicated to
the public.’.
2d. Member
States
shall
ensure
that
the
right
to
obtain an annual supplementary remuneration as
Article 2
referred to in paragraph 2b is administered by collecting
societies.
Transposition
1. Member
States
shall
bring
into
force
the
laws,
regulations
and administrative provisions necessary to comply with this
2e. Where
a
performer
is
entitled
to
recurring Directive by 1 November 2013. They shall forthwith inform
payments, neither advance payments nor any
the Commission thereof.
contractually defined deductions shall be deducted
from the payments made to the performer following
the 50th year after the phonogram was lawfully
When Member States adopt those measures, they shall contain a
published or, failing such publication, the 50th year
reference to this Directive or shall be accompanied by such a
after it was lawfully communicated to the public.’.
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.
(3) The following paragraphs shall be added to Article 10:
2. Member
States
shall
communicate
to
the
Commission
the
‘5. Article
3(1)
to
(2e)
in
the
version
thereof
in
force
on text of the main provisions of national law which they adopt in
31 October 2011 shall apply to fixations of performances
the field covered by this Directive.
and phonograms in regard to which the performer and the
phonogram producer are still protected, by virtue of those
provisions in the version thereof in force on 30 October
Article 3
2011, as at 1 November 2013 and to fixations of
performances and phonograms which come into being
Reporting
after that date.
1. By
1
November
2016,
the
Commission
shall
submit
to
the European Parliament, the Council and the European
Economic and Social Committee a report on the application
6. Article
1(7)
shall
apply
to
musical
compositions
with of this Directive in the light of the development of the digital
words of which at least the musical composition or the
market, accompanied, where appropriate, by a proposal for the
lyrics are protected in at least one Member State on
further amendment of Directive 2006/116/EC.

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EN
11.10.2011 Official
Journal
of
the
European
Union
L
265/5
2. By
1
January
2012,
the
Commission
shall
submit
a
report
Article 5
to the European Parliament, the Council and the European
Economic and Social Committee, assessing the possible need
Addressees
for an extension of the term of protection of rights to
This Directive is addressed to the Member States.
performers and producers in the audiovisual sector. If appro
priate, the Commission shall submit a proposal for the further
amendment of Directive 2006/116/EC.
Done at Strasbourg, 27 September 2011.
Article 4
Entry into force
For the European Parliament
For the Council
This Directive shall enter into force on the 20th day following
The President
The President
its publication in the Official Journal of the European Union.
J. BUZEK
M. DOWGIELEWICZ

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