Cliff's Law – the ruling on extending the period in which veteran musicians can claim royalties on their records – comes into effect this autumn. But will it work? Sarah Byrt and Dan Gallagher report

The extension of copyright in sound recordings and performers' rights from 50 years to 70 years is due to take effect on 1 November. Known as 'Cliff's Law' – having gained the support of Sir Cliff Richard as well as a number of other high-profile musicians and record producers of the 1960s – it will apply to sound recordings that were first released on or after 1 January 1963.

Although this change may be good news for some artists and the record industry, a number of questions remain about how it will work. While the underlying principles of the new regime are settled, having been introduced by a European Directive in October 2011, it is still not entirely clear how some of its key provisions will be enacted into UK law. 

Earlier this year, the Intellectual Property Office (IPO) published draft regulations, which gave an indication of how the changes will be put into effect, and held a public consultation on the proposals. Interested parties had until 4 March this year to respond. This article is based on that draft.

Some of the thinking behind these changes was that, because many performers begin their careers at a young age, the existing 50-year term for performers' rights is insufficient to protect their recordings and performances for their whole life. 

This could mean that some performers would face an income shortfall and be unable to object to uses of their recordings and performances during their lifetime. 

Performers' rights in records by Sir Cliff Richard, the Beatles and Elvis Presley among other notable artists were due to expire in the next few years. The same was true of copyright in the recordings, typically owned by the record company.

Use it or lose it

The new law does not merely give a longer lease of life to copyright for recordings and performers' rights – it comes with some extras. These include a 'use it or lose it' condition, which gives performers the right to serve notice on record companies that are failing to issue or make available "sufficient quantities" of their records during the 20-year period of extended copyright. 

In these circumstances, performers can terminate their agreements and copyright in their records will expire immediately. Because performers' rights in sound recordings are also being extended to 70 years, these will continue, meaning that although copyright in a record will have expired, performers can still prevent someone from issuing copies without consent by exercising their performers' rights. In other words, there is potential for control over recordings to pass from the record company to the artist. 

It is probably no surprise that the 'use it or lose it' provision has raised a number of tricky issues. Uppermost is deciding what qualifies as 'sufficient quantities'. The IPO asked in its consultation whether 'sufficient quantities' should be defined and if so, how. The suggested definition correlates sufficiency with "current and likely future demand by the public". 

The recent, well-publicised difficulties facing some of the UK's high street record shops suggests that the threshold for selling physical copies will be relatively low. A number of record companies are not waiting to find out, however, and have already released limited numbers of descriptively titled 'Use It or Lose It' and 'Copyright Extension' albums. 

Also unclear is how the 'use it or lose it' provision will operate for recordings with multiple performers. In its consultation, the IPO imagined that if one of the performers terminated their agreement, the record company would no longer be able to legally exploit the record, which could trigger termination rights in the contracts of the other performers.

Rather than exercise any contractual rights, the other performers could also use their new statutory right to terminate, in which case the performers could then reach an agreement about how to exploit the record. 

In reality, it may be more complex than this because the 'use it or lose it' right is available to any artist, including those whose contribution to a record was minor. This is particularly relevant to record producers that frequently use non-featured artists, for example the classical music labels.

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