REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Report on the application of Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of copyright and certain related rights
Date: 2025-07-07
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: application of EU law, artistic creation, artistic profession, audiovisual industry, copyright, literary and artistic property, music

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 7.7.2025  COM(2025) 364 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE Report on the application of Directive 2011/77/EU amending Directive 2006/116/EC on the term of protection of copyright and certain related rights    
 
 
Table of Contents 

I. 

INTRODUCTION ............................................................................................................. 2 

II. 

BACKGROUND ............................................................................................................ 3 

1.  Legal background .............................................................................................................. 3 

2.  Assessment of the possible need for an extension of the term of protection of rights to 
performers and producers in the audiovisual sector.............................................................. 4 

III.  TRANSPOSITION AND IMPLEMENTATION OF THE DIRECTIVE IN THE MEMBER 
STATES ................................................................................................................................... 5 

THE GENERAL IMPACT OF THE TERM EXTENSION INTRODUCED IN THE 2011 

IV. 
TERM DIRECTIVE ................................................................................................................. 6 

V. 

ACCOMPANYING MEASURES .................................................................................... 8 

1. 

‘Use-it or lose-it’ clause ..................................................................................................... 9 

2.  Annual Supplementary Remuneration ......................................................................... 10 

3.  Clean Slate provision....................................................................................................... 12 

4.  The Right to Renegotiate ................................................................................................ 12 

VI.  CONCLUSION ........................................................................................................... 13 

 
 
 
 
 
 
 
 
I. 

INTRODUCTION 

Directive 2011/77/EU (the ‘2011 Term Directive’ or ‘the Directive’) amending Directive 
2006/116/EC on the term of protection of copyright and certain related rights was adopted 
in 2011 to enhance protection of music performers and phonogram producers and improve 
the social situation of performers.  The Directive  extended the term of protection  of the 
rights  of  performers  and  producers  in  phonograms  from  the  first  lawful  publication  or 
communication to the public by 20 years and introduced a set of accompanying measures 
aimed  at  rebalancing  the  bargaining  position  of  performers  in  their  contractual 
relationships with producers. 

The 2011 Term Directive, under Article 3(1), requires the Commission to submit a report 
by 1 November 2016 assessing its application in the light of the development of the digital 
market  accompanied,  where  appropriate,  by  a  proposal  for  the  further  amendment  of 
Directive 2006/116/EC. The report referred to under Article 3(2) of the Directive, related 
to the assessment of the possible need for an extension of the term of protection of rights 
to performers and producers in the audiovisual sector, was published in 2020. 

The late publication of this Report is linked to the latest developments in EU copyright law 
and the need to take into account the new rules on remuneration of authors and performers 
introduced in the directive on Copyright in the Digital Single Market (hereinafter DSM 
Directive)1,  adopted  in  2019.  The  DSM  Directive  contains  provisions2  aimed  at  further 
improving  the  contractual  position  of  performers,  which  have  been  implemented  in 
Member  States  in  the  past  few  years.  The  Commission  services  consider  that  it  was 
important to take account of these new provisions, together with market and technological 
developments in the digital music market, to assess the 2011 Term Directive.  

The  main  source  of  information  supporting  this  report  is  a  targeted  study  (hereinafter 
referred  to  as  ‘the  Study’)3.  The  study  is  published  alongside  this  report.  It  includes 
stakeholders’ feedback collected through an online survey targeting relevant stakeholders 
from  the  music  sector  (mainly  performers,  phonogram  producers  and  collective 
management organisations (CMOs),4 but also public domain record labels, online service 

1 Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single 
Market, COM (2016) 593 final 
2 Chapter 3 of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on 
copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC 
3 Targeted study on the application of the Directive 2011/77/EU on the term of protection of copyright and 
certain related rights. The data collection (desk research, survey, interviews) for the purposes of the Study 
was conducted in late 2021 and early 2022. 
4  According  to  Article  3(a)  of  Directive  2014/26/EU:    ‘Collective  management  organisation’  means  any 
organisation  which  is  authorised  by  law  or  by  way  of  assignment,  licence  or  any  other  contractual 
arrangement to manage copyright or rights related to copyright on behalf of more than one rightholder, for 
the collective benefit of those rightholders, as its sole or main purpose, and which fulfils one or both of the 
following criteria: (i) it is owned or controlled by its members; (ii) it is organised on a not-for-profit basis. 

2 

 
 
 
 
 
 
providers,  distributors  and  broadcasters),  complemented  by  a  series  of  interviews.  The 
desk research of the study covers all the Member States and the field research covers 18 
Member States.  

In addition, the Commission services endeavored to complement the evidence gathered in 
the  Study  through  other  available  sources,  in  particular  contacts  with  stakeholders  and 
available information on the implementation of the 2011 Term Directive. In this context, 
a  complementary  source  of  evidence  is  the  2018  Study  commissioned  by  the  JURI 
Committee of the European Parliament (‘the EP study’).5 This EP study looked at the state 
of play of the implementation of the 2011 Term Directive in several Member States and 
considered some potential long-term effects. 

II. 

BACKGROUND 

1.  Legal background 

Works and other subject matter are protected under copyright for a limited period of time. 
The  ‘term  of  protection’  for  copyright  and  related  rights  is  the  period  during  which 
rightholders hold rights in their works that are protected by copyright, and other subject 
matter which are protected by related rights6. After the term of protection has expired, a 
work or subject matter falls into the public domain.  

At  international  level,  a  minimum  term  of  protection  for  authors  was  introduced  in  the 
Berne  Convention7  and  later  for  performers,  phonogram  producers  and  broadcasting 
organisations in the Rome Convention.8 Under the 1996 WIPO Copyright Treaty (‘WCT’) 
the same term of protection applies as under the Berne Convention for authors9. The 1996 
WIPO Performances and Phonograms Treaty (‘WPPT’) established a term of protection of 
50 years for performers, counting from the end of the year when the relevant fixation or 
publication was made.10  

CMOs are relevant stakeholders of the recorded music value chain with regard to the term extension as they 
contribute to specific aspects of the practical implementation of the 2011 Term Directive when they collect 
and distribute revenues which performers and producers are entitled to, on their behalf. These revenues can 
be based on uses of exclusive rights or remuneration rights. While performers’ exclusive rights are typically 
transferred to the producers, CMOs are typically entrusted with the management of performers’ remuneration 
rights.  
5 Implementation of the Directive 2011/77/EU: copyright term of protection 
6  While  the  term  ‘copyright’  covers  economic  and  moral  rights  granted  to  the  authors  of  works,  ‘related 
rights’ are the economic and moral rights granted to performers, producers and broadcasters on the specific 
subject matter. Related rights are often granted to encourage investment and are not subject to any condition 
of “originality” or “creativity.” Moral rights are not harmonised under EU copyright law. 
7 Article 7 of the Berne Convention for the Protection of Literary and Artistic Works provides for a protection 
of 50 years after the end of the year of death of the author. 
8  Article  14  of  the  Rome  Convention  for  the  protection  of  performers,  producers  of  phonograms  and 
broadcasting organisations provides a protection of 20 years from the end of the year in which the fixation, 
performance or broadcast was made. 
9 Article 1 of the WCT 
10 Article 17 of the WPPT 

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In  the  EU,  the  term  of  protection  for  authors  and  holders  of  related  rights  was  first 
harmonised by Council Directive 93/98/EEC11, followed by Directive 2006/116/EC12. The 
term of protection for all related rights13 was harmonised at 50 years counting from the 
relevant acts of performance or fixation, lawful publication, lawful communication to the 
public or broadcasting.14  

The  2011  Term  Directive,  which  amended  Directive  2006/116/EC,  was  adopted  on  27 
September 2011 and had to be transposed by Member States by 1 November 201315.  

It  extended  the  term  of  protection  for  performers  and  producers  regarding  fixations  of 
music performances and phonograms from 50 to 70 years from the first lawful publication 
or communication to the public of the recording. This extension of the term of protection 
applies  to  the  exclusive  and  remuneration  rights  granted  to  phonogram  producers  and 
in  Directive  2001/29/EC16,  Directive  93/83/EEC17  and 
performers 
in  Directive 
2006/115/EC18, as well as to the fair compensation due under certain exceptions provided 
in EU copyright law. 

The 2011 Term Directive also harmonised the term of protection for musical compositions 
with words clarifying that it shall expire 70 years after the death of the last following person 
to survive: the author of the lyrics and the composer.19  

Additionally, the Directive introduced a set of accompanying measures essentially aimed 
at  ensuring  that  the  performers  having  transferred  or  assigned  their  exclusive  rights  to 
phonogram producers could actually benefit from the term extension: (i) the use-it-or-lose-
it clause, (ii) the annual supplementary remuneration and (iii) the clean slate clause (see 
section VI). Furthermore, a separate provision was introduced as an optional measure for 
Member States enabling performers to renegotiate in their favour contracts entitling them 
to recurring payments after the 50th year from the lawful publication of the recording or 
of its communication to the public. 

It  is  worth  noting  that  further  provisions  aimed  at  improving  contractual  situation  of 
performers  have  been  introduced  in  the  DSM  Directive  (principle  of  appropriate  and 
proportionate  remuneration,  transparency  obligation,  contract  adjustment  mechanism, 

11 Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and 
certain related rights (OJ L 290, 24.11.1993, p. 9. Directive  as amended by Directive 2001/29/EC of the 
European Parliament and of the Council (OJ L 167,22.6.2001, p. 10) 
12  Directive  2006/116/EC  on  the  term  of  protection  of  copyright  and  certain  related  rights  (OJ  L  372, 
27.12.2006, p. 12.) 
13 The related rights of phonogram producers, performers and broadcasting organisations 
14 Article 3 of Council Directive 93/98/EEC and Directive 2006/116/EC 
15 2011 Term Directive Article 2(1) 
16 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 information society (OJ L 167, 22.6.2001, p. 10) 
17  Council  Directive  93/83/EEC  of  27  September  1993  on  the  coordination  of  certain  rules  concerning 
copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ L 
248, 6.10.1993, p. 15) 
18 Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental 
right and lending right and on certain rights related to copyright in the field of intellectual property (OJ L 
376, 27.12.2006, p. 28) 
19 2011 Term Directive, Article 1(1) 

4 

 
 
 
alternative dispute resolution procedure and the right of revocation). These provisions are 
broader than the accompanying measures described above, and they apply to both authors 
and performers across creative sectors.   

2.  Assessment of the possible need for an extension of the term of protection of 

rights to performers and producers in the audiovisual sector 

The 2011 Term Directive did not extend the term of protection for audiovisual performers 
and producers. This was addressed in a Commission Staff Working Document (‘SWD’) of 
9  December  2020,  which  assessed  the  possible  need  for  an  extension  of  the  term  of 
protection of the rights of performers and producers in the audiovisual sector as required 
by  Article  3(2)  of  the  2011  Term  Directive20.  In  this  SWD  the  Commission  services 
concluded that the available evidence did not call for an extension of the term of protection 
of performers and film producers in the audiovisual sector and indicated that this matter 
would be also examined in the broader context of the assessment of the functioning of the 
2011 Term Directive. 

Therefore,  in  order  to  complement  the  analysis  carried  out  in  2020,  the  Commission 
services tasked the contractor of the Study to gather further evidence on this matter. The 
contractor carried out a dedicated online survey, interviews and web-based search in order 
to gather additional findings.  

The Study confirmed the information presented in the 2020 Commission SWD with regard 
to legal presumptions on transfer of rights and the contractual practices in the audiovisual 
sector, with the result of audiovisual performers rights being concentrated rather with the 
producers than with CMOs.21 The study further analysed the potential revenues linked to 
the exploitation of films after 50 years from their release in order to better assess the need 
for and possible benefits of a term extension. The data from theatrical release indicates that 
most of the revenues from the commercial distribution of films happen in the first three 
years after the first release. Films older than 50 years are available to a smaller extent in 
TV broadcasts and on-demand channels;  however,  no data is  available on the revenues 
generated by these distribution channels, making it difficult to fully assess the revenues 
generated by the exploitation of films after 50 years. The Study also showed that the share 
of old films (published between 1970 and 1980) in the catalogues that CMOs manage on 
behalf  of  their  affiliates  is  rather  small,  leading  to  marginal  revenues  received  by 
performers for such films.22 

The  Study  did  not  find  any  new  evidence  that  would  challenge  the  previous  findings 
presented  in  the  2020  Commission  SWD.  The  results  of  the  complementary  evidence 

https://digital-strategy.ec.europa.eu/en/library/staff-working-document-pursuant-reporting-obligation-

20 
laid-down-directive-201177eu-term-protection 
21 Study, pages 91-94 
22  Study,  pages  94-103.  See  also  the  recent  study  published  by  the  European  Audiovisual  Observatory: 
“Heritage Films in Cinemas – a 2014-2023 analysis” in particular slide 15 

5 

 
 
 
  
 
gathering therefore do not point to a need, at this stage, to extend the term of protection of 
performers and film producers in the audiovisual sector. 

III.  TRANSPOSITION  AND  IMPLEMENTATION  OF  THE  DIRECTIVE  IN  THE 

MEMBER STATES 

All Member States have by now transposed the 2011 Term Directive. The transposition 
deadline was 1 November 2013. However, some Member States were late in transposing 
the directive and infringement cases for non-communication of transposition measures had 
to be opened. 

The EP study examined the transposition of the 2011 Term Directive in seven Member 
States and raised specific questions with regard to some of the provisions of the 2011 Term 
Directive,  namely  the  interpretation  of  the  terms  “lawfully  published”  and  “lawfully 
communicated  to  the  public”  regarding  the  calculation  of  the  term  of  protection  and 
whether remasters may be considered as new phonograms, as well as a question on the 
alignment between the term of protection for phonogram producers and performers.23  

The Commission has not received any complaint about Member States’ transposition or 
application of the 2011 Term Directive since its entry into force. There has also been no 
preliminary  reference  from  any  Member  State  on  the  provisions  of  the  2011  Term 
Directive and hence there is no case law of the Court of Justice  of the European Union 
related to this Directive. 

The  Study  found  that  the  implementation  of  the  2011  Term  Directive  was  overall 
successful, while it also identified a few issues in relation to the national implementation 
of specific provisions, which delayed the actual  application of the rules included in  the 
2011  Term  Directive24.  Some  of  these  issues  stem  from  questions  related  to  national 
copyright law and practice, beyond the scope of application of the 2011 Term Directive 
and the  rules  harmonised  at  EU level.  Given that  they are related to  the  accompanying 
measures, notably the use-it or lose-it clause and the annual supplementary remuneration 
(or ‘ASR’), these specific issues are explained in detail below (see section V).  

On  the  other  hand,  the  study  also  identified  specific  national  practices  (regarding  the 
implementation  of  ASR,  historical  hampering  factors  and  the  bargaining  position  of 
performers)  in  several  Member  States  that  have  the  potential  to  facilitate  the 
implementation of specific provisions of the 2011 Term Directive.25  

23 EP study, pages 15-16 
24 Study, page 81 
25 Study, pages 116, 120, 122 

6 

 
 
 
 
 
 
IV.  THE GENERAL IMPACT OF THE TERM EXTENSION INTRODUCED IN THE 2011 

TERM DIRECTIVE  

The main goal of the extension by 20 years of the term of protection for music performers 
and  phonogram  producers  was  to  maintain  the  existing  revenue  streams  of  these 
rightholders for an additional time period. As indicated in the explanatory memorandum 
accompanying  the  legislative  proposal,  this  was  needed  in  order  to  improve  the  social 
situation of performers, in particular to address the income gap that music performers faced 
at the end of their lifetimes26, as well as to cope with the revenue losses of phonogram 
producers resulting from piracy and the challenges related to digital distribution.27   

It is difficult to isolate the contribution of the term extension to the achievement of these 
goals, as several important factors affected the music market since the entry into force of 
the 2011 Term Directive.  

Digitalisation and the growing popularity of on-demand music consumption through music 
streaming services led to important changes in the recorded music sector as the distribution 
of phonograms is mostly delivered digitally or online, increasing the availability of music 
and helping artists and producers to reach wider audiences. Also, more and more artists 
are self-releasing on streaming platforms. As a result, since the 2011 Term Directive came 
into  force,  whilst  more  music  is  available  to  users  online,  most  other  channels  of 
distribution  in  analogue  formats  have  almost  disappeared  completely  or  become  niche. 
These changing trends in the music industry have not been coupled with price increase for 
music in digital formats, and any price increases in analogue formats are likely due to other 
factors beyond the creative content28. That said, as most analogue formats are now obsolete 
or not widely available, consumers tend to have to repurchase some form of digital access 
to music which was once part of their private collections. Piracy, although decreasing in 
the past decade29, still undermines the revenues of the music industry.30  

It is also important to consider the size and market relevance of the catalogues covered so 
far by the term extension from 50 to 70 years after the first publication of the phonogram. 
Until recently, the extension provided under the 2011 Term Directive benefitted only to 
older recordings from the 1960s. There are less recordings in these repertoires, and they 
are typically less popular nowadays. As more and more recordings from the 70’s, 80’s and 
90’s will benefit from the extension of the term of protection, the implementation of the 

26 Recital 5 of Directive 2011/77/EU 
27  Proposal for a Directive amending Directive 2006/116/EC of the European Parliament and of the Council 
on the term of protection of copyright and related rights (COM(2008) 464 final) Explanatory memorandum; 
Commission  Staff  Working  Document  -  Impact  Assessment  on  the  legal  and  economic  situation  of 
performers and record producers in the European Union (SEC(2008) 2288), page 26. 
28 Study, pages 52-54 
29  According  to  the  EUIPO  report  on  “Trends  in  digital  copyright  infringement  in  the  European  Union” 
(2023), pirated accesses to music content have been at a constant level since mid-2020, at about one fifth of 
the 2017 level. 
30 Study, page 55  

7 

 
 
  
 
2011  Term  Directive  will  probably  translate  into  more  revenues  for  the  relevant 
rightholders.31  

Also, the generally small amount of quantitative data available influences the assessment 
of the impacts  of the 2011 Term Directive. Notwithstanding that, an overall qualitative 
assessment can be made based on the information available. 

The additional 20 years of protection introduced by the 2011 Term Directive brought the 
term  of  protection  of  music  performers  and  producers  in  the  EU  closer  to  the  term  of 
protection applied in the US32, a major market. The former difference of 45 years between 
the term  of protection in the US  and in  the EU risked  having  a  negative  impact  on the 
cultural  diversity  in  music  in  the  EU  by  reducing  the  incentives  to  create  music  for 
European tastes, due to the potentially higher revenues from the US market.33       

The term extension, by narrowing this gap in protection and by allowing to continue the 
marketing  of  older  phonograms,  contributed  to  foster  the  digitalisation  of  the  affected 
repertoires.  Phonograms  from  the  1960s  were  the  first  group  of  recordings  that  could 
benefit  from  the  extension  of  the  term  of  protection.  The  term  extension  allowed 
phonogram producers to exploit their back catalogue for a longer period of time and to 
continue  marketing  them.  This,  coupled  with  technological  and  market  developments, 
incentivised  producers  to  digitize  these  older  phonograms.  Keeping  these  songs  in  the 
catalogues,  often  with  better  sound  quality  in  the  digital  format,  helped  to  generate 
revenues. This has also led to more music being more easily available for consumers.34 

The survey conducted for the purposes of the Study showed diverging views on the impact 
of  the  term  extension  on  the  turnover  of  national  music  markets  in  the  EU.35    Music 
producers and their associations view this specific aspect of the 2011 Term Directive rather 
positively, and some of them mentioned that older phonograms can continue to generate 
some  revenues.  CMOs  have  more  dispersed  opinions  and  performers  do  not  see  much 
increase in that regard.  

The Study found a general upward trend between 2010 and 2020 in relation to the evolution 
of total revenues distributed both to performers and phonogram producers; however based 
on the data available it is difficult to disentangle the effect of the term extension from other 
legal  and technical  developments.36  According to  some of the CMOs,  interviewed  this 
general  increase  in  revenue  is  linked  to  other  aspects  related  to  collective  rights 

31 See pages 69, 73-74 and 110 of the Study where several CMOs mention the importance of the popularity 
of the recording with regard to the revenues generated. Also, with regard to some Member States, CMOs 
expect a revenue increase linked to the political, legal and economic changes that occurred since the early 
90s. 
32 In the US sound recordings enjoy a protection of 95 years counting from their creation (17 U.S.C. 302 (c)  
33  Commission  Staff  Working  Document  Impact  Assessment  on  the  Legal  and  Economic  Situation  of 
performers and Record Producers in the European Union, 2008, p. 19-20 
34 Study, page 79 
35 Study, page 58 
36 Study pages 63-64 

8 

 
 
 
management, such as the implementation of the Collective Rights Management Directive37 
and improved rights management systems used by CMOs.38  

V. 

ACCOMPANYING MEASURES 

Besides extending the term of protection, the 2011 Term Directive introduced three sets of 
accompanying  measures  applying  specifically  to  performers  for  the  period  of  the  term 
extension in Article 1(2)(c) of the 2011 Term Directive. These measures aimed to address 
the specificities of the contractual practices in the music industry, under which performers 
transfer or assign their rights to phonogram producers when signing a record agreement, 
in return for royalties or one-off payments39.  

The measures included in the 2011 Term Directive are the ‘Use-it-or-lose-it clause’, the 
Annual Supplementary Remuneration and the ‘Clean slate’ provision. Lastly, the Directive 
introduced an optional measure for Member States which enables performers to renegotiate 
in their favour contracts  signed before November 2013, “the right to renegotiate”40. All 
these provisions are only applicable during the 20-year extension period41.  

The  purpose  of  these  accompanying  measures  is  to  ensure  that  performers,  whose 
exclusive  rights  are  being  exploited,  can  benefit  from  the  term  extension,  either  by 
improving their remuneration or their contractual position towards record producers.  

The  DSM  Directive  introduced  further  provisions  in  EU  copyright  law  in  order  to 
strengthen the contractual position of authors and performers and ensure that they receive 
fair  remuneration  when  they  transfer  or  assign  their  rights  for  exploitation42.  These 
provisions have been implemented in all Member States. The Commission will assess the 
effectiveness of these measures in the context of the review of the Directive, which is due 
no sooner than 7 June 2026, taking into account the views expressed by the stakeholders 
affected43.  

Moreover,  the  Commission  has  recently  published  a  study  to  examine  the  contractual 
practices used in the creative sectors (in particular buy-out practices) to transfer copyright 

37  DIRECTIVE  2014/26/EU  OF  THE  EUROPEAN  PARLIAMENT  AND  OF  THE  COUNCIL  of  26 
February 2014 on collective management of copyright and related rights and multi-territorial licensing of 
rights in musical works for online use in the internal market 
38 Study, page 65 
39 For more information on contractual practices in the music sector, see 2015 Study Remuneration of authors 
and performers for the use of their works and the fixations of their performances - Publications Office of the 
EU (europa.eu) 
40 Article 1(4) of the 2011 Term Directive 
41 Recital 10 of the 2011 Term Directive 
42 Articles 18 to 23 of Directive (EU) 2019/790 
43 The recent report “Streams and Dreams part 2” by D. Johansson includes the results of a survey on the 
impact of the DSM Directive on EU artists and musicians conducted by AEPO-ARTIS and its members in 
collaboration with IAO.  

9 

 
 
    
  
 
and  related  rights  from  authors,  performers  and  producers  to  contractual  counterparts 
exploiting these rights and assess the impact of such practices on remuneration44. 

1.  ‘Use-it or lose-it’ clause 

Article 1(2) c (new paragraph 2a) of the 2011 Term Directive entitles performers, under 
certain conditions, to terminate their contract on transfer or assignment of their rights to a 
producer for the exploitation of a phonogram after the 50th year from its lawful publication 
or communication to the public, if the phonogram producer fails to offer or make available 
the recording in sufficient quantity. This right is unwaivable by the performer.  

The goal of this provision is to increase performers’ bargaining power in the exploitation 
of the sound recording during the period of the term extension by allowing them, under 
certain  conditions,  to  terminate  the  exploitation  contract  of  the  phonogram  with  the 
producer.  When the ‘use-it or lose-it’ clause is invoked by the performer and the rights 
revert to them, the rights of the producer in the phonogram expire in order to avoid the co-
existence of those rights.45  

The  study  showed  that  the  practical  application  of  the  use-it-or-lose-it  clause  is  more 
complicated  in  some  Member  States  for  recordings  involving  several  performers.46 
According  to  the  relevant  provision  of  the  2011  Term  Directive,47    the  rules  for  the 
termination  of  a  contract  involving  a  plurality  of  performers  should  be  defined  in  the 
applicable  national  law.  In  certain  Member  States,  national  laws  require  a  common 
agreement  amongst  the  performers  to  invoke  the  ‘use-it  or  lose-it’  clause  against  the 
producer, and such an agreement could be difficult to reach. The study also identified a 
few examples of national legal provisions which facilitate the use of the clause in such 
specific cases.48     

Another specific challenge identified in the study concerns recordings produced during the 
communist era in some Member States. For example, in Romania, such recordings belong 
to the national patrimony and therefore only the Romanian state can take any decision in 
relation to those phonograms, not the relevant performers.  

Our findings point to a very limited application of the ‘use-it or lose-it’ clause in practice. 
It seems that contracts have been terminated under this clause only in very few cases. This 
is  mainly  due  to  the  changes  in  music  distribution  and  consumption  trends  in  the  past 
decade  and  the  increasing  predominance  of  the  streaming  model.  A  phonogram  that  is 
made available on a streaming service means that the recording is being offered or made 
available in “sufficient amount of copies” and therefore the conditions to invoke the ‘use-
it or ‘lose-it’ clause do not apply.  

44  Study  on  contractual  practices  affecting  the  transfer  of  copyright  and  related  rights  and  the  ability  of 
creators  and  producers  to  exploit  their  rights,  available  at:  Commission  publishes  study  on  contractual 
practices affecting the transfer of copyright and related rights | Shaping Europe’s digital future 
45 Last sentence of Recital (8) of the 2011 Term Directive 
46 Study page 82 
47 2011 Term Directive, Article 1 (2) c, fourth sentence 
48 Study page 122, 123 

10 

 
 
 
Article 22 of the DSM Directive provides for a revocation mechanism that has a broader 
application  than  Article  1(2)(c)  of  the  2011  Term  Directive  as  it  is  not  limited  only  to 
contracts  50  years  after  the  lawful  publication  or  communication  to  the  public  of  the 
phonogram.  This  provision  is  expected  to  strengthen  the  contractual  position  for  all 
performers. However, Member States have a certain flexibility in implementing this new 
provision: they can exclude certain  works or subject  matter  from  the application of the 
revocation  mechanism  or  provide  that  it  applies  only  in  a  specific  timeframe49.  As 
mentioned in the study on contractual practices, several Member States have added further 
details  to  adapt  this  mechanism  to  their  national  legal  systems  and  national  rules  vary 
considerably50.    Therefore,  the  ’use-it  or  lose-it’  clause  remains  relevant  for  music 
performers  as  it  provides  for  an  unwaivable  right  applicable  during  the  period  of  term 
extension.  

2.  Annual Supplementary Remuneration 

Under Article 1(2)(c) (new paragraphs ‘2b’, ‘2c’ and ‘2d’) of the 2011 Term Directive, 
performers are entitled to receive an additional revenue, equivalent to 20% of the annual 
revenues derived by producers from the exploitation of a phonogram during the extension 
period. This supplementary remuneration is paid through the revenues derived from the 
reproduction,  distribution  and  making  available  of  the  phonogram  during  the  previous 
year.  

This Annual Supplementary Remuneration (the ‘ASR’) applies only to those performers 
who  transfer  or  assign  their  exclusive  rights  against  an  upfront  non-recurring  (flat  fee) 
remuneration. Typically, these are session musicians, who are not entitled to a percentage-
based revenue generated from the potential later success of their work. This non-waivable 
remuneration  right  does  not  apply  to  performers  who  are  already  entitled  to  recurring 
payments (‘royalties’) over the revenues generated by their fixed performances. 

Only  CMOs  can  collect  and  administer  the  ASR.51  After  having  identified  the  eligible 
recordings and the performers on these recordings who are entitled to ASR (typically either 
based on the information available to the CMOs and/or obtained from the record labels), 
CMOs  collect  this  revenue  from  the  record  producers  and  distribute  it  to  the  eligible 
performers. The 2011  Term Directive  also  includes  a specific provision  which requires 
phonogram producers to provide any necessary information related to the payment of the 
ASR to performers upon their request.52  

Most of the CMOs and EU umbrella organisations interviewed in the context of the Study 
consider  that  the  ASR  had  the  greatest  impact  on  performers’  revenues  among  the 
measures  introduced  by  the  2011  Term  Directive.53  Data  collected  for  Czechia,  the 
Netherlands,  Germany,  Poland,  Portugal,  Sweden  and  Spain  shows  a  slow  but  steady 

49 Article 22(2) of the DSM Directive  
50  Study  on  contractual  practices  affecting  the  transfer  of  copyright  and  related  rights  and  the  ability  of 
creators and producers to exploit their rights; pages 195-197 
51 New Article 3 paragraph 2d of the codified text of the Term Directive  
52 New Article 3 paragraph 2c second subparagraph of the codified text of the Term Directive 
53 Study, page 70 

11 

 
 
 
increase  in  the  collection  of  the  ASR.  This  indicates  that  this  additional  remuneration 
scheme is promising with regard to providing a revenue source for performers.54    

The Study found that the collection and distribution of the ASR started only recently in 
several Member States55, indicating that these delays stem from specific implementation 
issues linked to the functioning of the CMOs or to difficulties to identify rightholders in 
old phonograms in certain Member States. For example, in Slovenia, CMOs by law have 
to  comply  with  a  cost-benefit  ratio  for  the  rights  that  they  manage.  The  relevant  CMO 
considers  that  the  anticipated  impact  of  the  ASR  would  be  too  low  to  meet  the 
aforementioned ratio for the time being.56 In Poland, the producer of the songs recorded in 
the 60’s and 70’s was the former state-owned record company, which no longer exists. 
Although another label has now the rights to exploit these phonograms, in Poland the term 
‘producer’ only  applies to the entity that originally recorded the phonogram. Hence the 
labels holding the relevant rights are not obliged to pay the ASR. 57 In Romania, the CMO 
managing  the  ASR  was  appointed  three  years  after  the  transposition  of  the  2011  Term 
Directive.58 

Irrespective of the impact of the ASR compared to other accompanying measures, CMOs 
and music performers’ associations consider that so far the ASR has had  a limited impact 
on performers’ revenues.59 Apart from the issues mentioned above that may have affected 
the  collection  and/or  distribution  of  the  ASR  in  several  Member  States,  it  can  also  be 
explained by the low number of recordings covered so far by the term extension.60 In other 
cases it could also stem from the difficulties in obtaining the necessary information needed 
for the calculation and payment of the ASR61. The EP Study also identified this issue,62 
and  pointed  at  possible  solutions  that  involve  both  phonogram  producers  and  CMOs.63 
CMOs also pointed out the difficulties to obtain the necessary information from producers, 
including to identify the performers entitled to receive the ASR.64 Current technological 
developments  and  the  use  of  relevant  metadata  could  help  to  improve  the  sharing  of 
information necessary to provide the ASR to performers.  In line with Article 1(2)(c) of 
the Directive, paragraph 2c, Member States could facilitate such cooperation and exchange 
of information among the relevant stakeholders in order to secure the payment of the ASR.      

These difficulties are expected to be addressed to some extent by the implementation of 
the  transparency  obligations  established  by  Article  19  of  the  DSM  Directive.  This 
provision  goes  beyond  the  already  existing  information  requirement  in  the  2011  Term 
Directive and aims to provide up to date, relevant and comprehensive information on the 

54 Study, page 72, fig. 20; see also ‘Performers’ Rights Study Update 2022’, AEPO Artis, page 71. 
55 Study page 81 
56 Study page 88 
57 Study page 89 
58 Study page 82 
59 Study page 71 
60 Study page 73 
61 Study page 72, 85 
62 EP Study, p. 7 
63 EP Study, p.47 
64 Performers’ Rights Study Update 2022’, AEPO Artis, page 71. 

12 

 
 
 
exploitation  of  relevant  works  and  performances.65  Due  to  the  specificities  of  different 
content sectors, such as the music sector66, Member States may not apply this provision 
with regard to non-significant contributions unless it is required for the purposes of the 
contract adjustment mechanism under Article 20 of the DSM Directive.67  

The  ASR  is  an  unwaivable  remuneration  right  and  can  be  a  relevant  complementary 
revenue  source  for  performers  in  the  future.  Recent  transparency  reports  from  CMOs 
representing performers show a positive trend illustrating an improved administration and 
payment of the ASR.68 The remuneration distributed to performers is likely to increase for 
popular  phonograms  from  the  1970s  and  80s  which  will  start  to  benefit  from  the  term 
extension in the coming years.69   

3.  Clean Slate provision 

The  ‘clean  slate’  provision  set  out  in  Article  1(2)(c)  of  the  2011  Term  Directive  (new 
paragraph  2e)  requires  that  royalties  distributed  to  performers  for  the  duration  of  the 
extension period are free of advance payments and of any contractually defined deductions, 
which  ultimately  reduce  the  revenues  of  those  performers.  This  provision  covers  those 
performers who transferred or assigned their rights to phonogram producers in return for 
royalty payments and allow them to benefit from increased remuneration for the extended 
term of protection.  

Evidence  suggests  that  the  clean  slate  provision  has  been  implemented  in  practice  via 
contractual terms between record labels and performers already before the expiry of the 50 
year term.70 The EP study pointed out the potential issue of derogation by contract between 
performers and record producers to the clean slate provision71, depending on how Member 
States  transposed  this  measure;  however  the  Study  found  no  evidence  of  such  actual 
practice in the Member States covered.  

Despite the limited evidence collected, the clean slate provision is an important safeguard 
for  performers  to  ensure  that  they  benefit  fully  from  the  extended  term  of  protection 
through  the  payment  of  royalties  without  any  deductions  after  the  initial  50  years  of 
protection are over.  

65  This  will  also  address  the  concern  raised  in  the  EP  study  (page  27)  with  regard  to  the  national 
implementation of the information requirement of the 2011 Term Directive 
66 DSM Directive, recital (77) 
67 Article 19 (4) of the DSM Directive 
68  See  for  example  the  2023  transparency  report  from  the  French  CMO  SAI    Rapport-de-transparence-
exercice-2023.pdf 
69 Study p 74 
70 Study p77 
71 EP study, page 50 

13 

 
 
 
4.  The Right to Renegotiate 

Article 1(4) of the 2011 Term Directive is an optional provision which allows Member 
States to grant performers the right to renegotiate in their favour contracts concluded before 
1 November 2013 after 50 years from the publication of the recording. It appears that only 
France implemented this measure, although such ‘right to renegotiate’ already existed at 
least in one Member State72 by the time of adoption of the 2011 Term Directive. There is 
no available evidence on the use of this right in practice.  

Also  in  this  case  it  should  be  noted  that  Article  20  of  the  DSM  Directive  contains  a 
provision  having  a  similar  goal  as  the  ‘right  to  renegotiate’.  It  introduces  a  contract 
adjustment  mechanism  allowing  authors  and  performers  or  their  representatives,  under 
certain  conditions,  to  claim  additional  remuneration  in  case  the  originally  agreed 
remuneration  turns  out  to  be  disproportionally  low  compared  to  subsequent  relevant 
revenues. Since this more recent provision is mandatory for Member States, in practice it 
could  be  applied  more  frequently  than  the  ‘right  to  renegotiate’  under  the  2011  Term 
Directive. 

VI.  CONCLUSION  

Overall, by introducing an additional period of protection for producers and performers in 
the music sector, coupled with specific accompanying measures, the 2011 Term Directive 
has met its general (‘promoting music production in Europe’) and specific (‘contribute to 
enhancing the welfare of performers in the music industry‘; ‘contribute to enhancing the 
competitiveness  of the European music industry’; ‘increase available music repertoire’) 
objectives.73 

While it is difficult to isolate the economic impact of the extension of the term of protection 
in the music sector, the evidence collected showed that it allowed to ensure the continuous 
exploitation  of  older  phonograms  and  the  remuneration  of  music  performers  for  the 
exploitation  of  their  earlier  performances  also  when  they  reach  an  older  age,  therefore 
helping to improve their financial situation.  

The  term  extension  also  contributed  to  maintaining  the  revenue  flows  for  phonogram 
producers for the exploitation of old catalogues. This encourages the digitisation of older 
recordings which now can be also exploited through digital music distribution services and 
contribute to the wider availability of European music. 

The  term  extension  is  expected  to  have  a  stronger  impact  on  the  revenues  of  music 
performers and producers in the near future, when popular songs from different musical 
genres from the late 20th century will come under the scope of the 2011 Term Directive. 
This phenomenon is expected to be coupled with higher collection and distribution rate 

72 For example in Germany 
73 Impact Assessment, p. 26 

14 

 
 
 
 
 
applying  to  the  Annual  Supplementary  Remuneration,  which  is  expected  to  further 
improve performers’ financial situation.  

Based on the evidence available, the other accompanying measures included in the 2011 
Term Directive (‘use-it or lose-it’, ‘clean slate’ and ‘right to renegotiate’) appear to be less 
impactful than expected. Nevertheless, they provide performers with important safeguards 
in their contractual relationships with producers, as regards the exploitation of their rights 
and  the  remuneration  due  during  the  extended  term  of  protection.  The  provisions  on 
creators’  remuneration  of  the  DSM  Directive  are  expected  to  further  contribute  to 
strengthen performers’ bargaining position.  

Based  on  this  assessment,  a  further  revision  to  Directive  2006/116/EC  does  not  seem 
necessary. The Commission will continue to monitor the evolution of the European music 
market. It will assess the impacts of the fair remuneration provisions included in the DSM 
Directive in the context of the review of that Directive, due no sooner than 7 June 2026.  

15