(by Francesca Maculan)

Legislative Decree n. 22 of February  2014 published on 11 March 2014, adopting the directive 2011/77/EU which amends the term of protection for copyright and certain related rights, modifies some of the articles of the Italian Copyright Law n. 633/1941 (“ICL”). Below is a summary of the main changes introduced by the decree.

First of all, the decree concerns the producers of phonograms that are lawfully published or communicated to the public within 50 years of their fixation: the related rights protection has been extended from 50 to 70 years starting from the date of the first lawful publication or lawful communication to the public (art. 75 ICL).

These amendments consequently change the rights of executors and performers of phonograms. First, the new art. 84-bis has been added: in case artists’ contracts on transfer or assignment give them the right to claim a non-recurring remuneration (i.e. a “forfait” remuneration) in return for the transfer of their rights to the phonograms’ producer, the new article grants the artists the fundamental right to receive annual compensation from phonogram producers for each year immediately following the 50th year from the lawful publication or communication to the public of the related phonogram. This remuneration shall be equal to 20% of the phonogram producer’s revenue received during the year preceding that in which the remuneration is paid.

The new art. 84-ter ICL then grants to the executor or performer the right to terminate the contract through which they have transferred their rights to the phonogram producers if the latter, after 50 years from the first lawful publication or communication to the public, does not offer on sale a sufficient number of copies or does not make the phonograms available to the public in a way that guarantees that each member of the public can access it from the place and at a time chosen by themselves (the so called “use it or lose it” clause). Nevertheless, the article specifies that this right can only be exercised if the producer of the phonogram doesn’t fulfil both forms of utilisation mentioned above within one year of the artist’s communication that he/she wants to terminate the contract. The consequence of the termination of the contract will be the loss of the producer’s rights to the phonogram.

Furthermore, in line with the above, art. 85 ICL, regarding the terms of the rights of the executors and performers of works fixed on phonograms lawfully published or communicated to the public within 50 years from their execution, has also been modified: the term of the related rights has in fact been extended from 50 to 70 years from the lawful publication or lawful communication to the public (while it remains a term of 50 years for any acting, executions and performances that are fixed in any ways that are different to the phonogram).

The amendments introduced by the new decree will be applied to the rights for the performance fixations and on those phonograms already protected by law on 1 November 2013, and also of course to any performance fixations and phonograms created after that date.