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84 post mortem autoris for copyright and 50 years lasting from the date of lawful publication or communication to the public of a performance, recording or broadcast for rights related to copyright. As a result of the entry into force of Directive 2011/77, EU law establishes now a further distinction in the field of neighbouring rights. Through an amendment of Directive 2006/116, the term of protection of sound recordings and fixations of performances incorporated into sound recordings was extended from 50 to 70 years from the date of publication or public communication of the recording. The term of protection of broadcasts and fixations of performances otherwise than in sound recordings, instead, remained untouched and is still subject to the previous 50-year term.

In this evolving legislative context, acts of performance, fixation and broadcasting of works which have entered the public domain are automatically protected by neighbouring rights which restrict anyone from lawfully copying, communicating to the public and modifying performances, recordings and broadcasts without the authorisations of the respective rights-holders. This principle entails that creative works in the public domain would never become effectively available to the public at large as “commons” insofar as these legally unprotected pieces of work were embodied by performers, phonogram producers and broadcasters exclusively into tangible and intangible performances released under copyright terms which merely aim to exploit commercially the above-mentioned rights.

If European law- and policy-makers wish to act seriously and effectively for the sake of cultural enrichment of society and for the pursuit of innovation through the enforcement of exclusive rights in sound recordings, they should consider that the economics of digital performance, recording and communication have been  evolving very rapidly in the last two decades. Digital technologies and the Internet have changed the way in which performers, recording producers and broadcasters (who have often established themselves even as web-casters) manage their copyright-related rights. Multi-purpose digital technologies which enable acts of recording, editing, storage and dissemination of audio, video and