Sound recordings and performances are protected under UK copyright law. Producers of sound recordings (such as record labels) have exclusive rights to control the copying, making available online, broadcasting, and public playing of their recordings, among other uses.

The performers involved in a sound recording (such as musicians and vocalists) have similar rights. However, in the case of broadcasting and public playing (e.g. where a song is played on the radio or in a nightclub) (known as “public performance rights” or “PPR”), the performers have a right to equitable remuneration for that use, rather than an exclusive right to control the broadcasting or public playing of a sound recording of their performances.

UK copyright protection, including PPR, is available for sound recordings if the producer is a national of, or if the recording is first published in, a country that is a party to relevant international agreement (“qualifying country”), even where the country of nationality of the producer does not provide reciprocal PPR to UK nationals. UK performer right protection, including PPR, is available for performances if the performer is a national of, or the performance is given in, a qualifying country. However, a foreign performer only qualifies for PPR in the UK where and to the extent that the qualifying country provides PPR to UK nationals, known as the principle of “material reciprocity”. Sometimes this means that UK PPR revenues accrue solely or mainly to the foreign producer of a sound recording.

For example, because the US only provides public performance rights for certain digital transmissions of music, US performers are only entitled to equitable remuneration for equivalent uses in the UK. However, US producers are entitled to remuneration in most circumstances where their recordings are broadcast or played in public in the UK, even though equivalent protection is not available to UK producers in the US. The situation results in UK users of foreign music paying considerable amounts where there are no corresponding benefits to the UK music industry in the US.

The UK Intellectual Property Office is seeking input on whether to change the UK rules for PPR eligibility (note, the consultation is about PPR only and does not apply to streaming rights) and is considering 4 options (note: this 0-3 numbering is the numbering applied by the IPO):

0. Maintain the status quo.

1. Treat foreign performers in the same way the law currently treats foreign producers, expanding the pool of foreign performers eligible for PPR in the UK.

2. Treat foreign producers in the same way as the law currently treats foreign performers, significantly narrowing the pool of foreign producers eligible for PPR in the UK.

3. Apply option 1 to pre-existing sound recordings and performances and option 2 to new sound recordings and performances.

Options 1-3 would comply with the UK’s obligations under international agreements.

The IPO states that the Government does not intend to pursue option 0 and that it is currently considering options 1 and 3. Although option 2 could result in substantial savings to UK broadcasters and those that play music in public, it could also lead to a reduction in investment in new UK music. Although option 1 would see foreign performers (particularly from the US) benefit, the Government does not expect it to result in substantial costs or benefits for UK creators, users or consumers such as an increase in licence fees. Instead, the Government expects the change to primarily result in a redistribution among foreign record labels and performers of the music licence fees paid by UK users. However, each option is dependent on how licence fees would adjust, and how consumption of UK and foreign music might change, in response to each option, and it is these uncertainties on which the Government is seeking input.

For more information and to respond to the consultation, which closes on 11 March 2024, click here.