Who owns the copyright on barristers’ advocacy? – Emily Goodhand
22 January 2013
Following yesterday’s welcome announcement that the UK Supreme Court (UKSC) is uploading judgment summaries to YouTube (see Adam’s post), there has been some speculation as to whether the UKSC will take the next step in its embrace of digital technology and upload full hearings of trials. But could taking this step result in falling foul of the UK’s copyright law?
There are several issues to consider here. Firstly: who owns the recording? Secondly: what rights do the individuals involved in the recording have? And finally: what defences (if any) apply?
Ownership is actually more tricky than it first appears. According to the UKSC’s press release, proAV (a UK firm) will be producing the films for the Court’s YouTube channel. As these films are initially streamed live, they satisfy the definition of a broadcast for the purposes of the Copyright, Designs and Patents Act 1988 (CDPA). It is likely that there is a contract in place between the UKSC and proAV which states that the copyright of these broadcasts is assigned to the Crown, but it is a point which may require clarification nonetheless.
Part II of the CDPA deals with the rights conferred on performers and persons having recording rights. Performers are usually thought of as those involved in dramatic or musical performance, but the definition of a performance in section 180 of the CDPA is fairly broad:
In this Part — “performance” means — .
(a)a dramatic performance (which includes dance and mime), .
(b)a musical performance, .
(c)a reading or recitation of a literary work, or .
(d)a performance of a variety act or any similar presentation, .
“Any similar presentation” is sufficiently vague as to include items such as lectures, but it is unlikely that sporting events would be considered performances given that the European Court of Justice (as it then was) in Football Association Premier League Ltd and Others v QC Leisure found that there was no copyright in a football match. Therefore, it could be argued that individuals featuring in hearings, such as barristers, have performers’ rights in the event of the hearings being filmed.
Performers’ rights are divided into three types, all of which are afforded to performers: non-property rights, property rights and remuneration rights. Only the first two are of importance here as remuneration rights in audiovisual works only relate to the rental right (so if the broadcast was lent out, the performer as well as the producer would be entitled to remuneration). It is important to note that performers’ rights are separate from copyright and moral rights, although there are similarities in remedies and defences for infringement.
Non-property rights are infringed when: a performance is broadcast live without the performer’s consent; a performance is recorded illicitly (e.g. handheld recording device in a theatre); a performance is included in a broadcast which is subsequently recorded from. This relates to the whole or a substantial part of a performance.
It is the performer’s consent in this case which is crucial to prevent infringement of these rights; if the defendant had good reason to believe that the performer consented to the recording of the performance, this would cover not only the showing or playing in public but also the communication to the public of the performance (i.e. upload to the Web). Section 193 of the CDPA states that consent “may be given in relation to a specific performance, a specified description of performances or performances generally, and may relate to past or future performances.” Even so, the law does not clarify how consent should reasonably be given (i.e. whether it may be verbal or written).
Property rights conferred on a performer are specifically identified as: the reproduction right, the distribution right, the rental and lending right, and the making available right. The making available right is key in relation to the question of uploading broadcasts to YouTube because the text of section 182CA makes a specific reference to on-demand broadcasting (making the performance available in such a way that members of the public may access the recording from a place and at a time individually chosen by them). Again, if any of these acts are done without the consent of the performer, performers’ rights are infringed.
With all of these rights conferred on performers, could a barrister theoretically have a case of infringement of his or her performers’ rights if the full hearing was made available on YouTube or wherever else without consent? Theoretically yes, but the barrister is unlikely to win given that in Schedule 2 of the CDPA there is a list of permitted acts with performances, one of which states that there is no infringement of performers’ rights in anything done for the purposes of judicial proceedings or for the purpose of reporting such proceedings. As the making available of the hearing on YouTube is more than likely to fall into the category of judicial proceedings, this defence would stand.
But what about using clips from these YouTube videos in teaching? The defence of judicial proceedings would not apply to further use, so other defences would have to be invoked. Fortunately, there are a number of permitted acts which cover both copyright and performers’ rights in the broadcast. For example, short clips from hearings could be used under the defence of fair dealing for criticism and review. Clips could also be used in the setting of examinations and the communication of questions to candidates. However, performers continue to retain moral rights in their works, and as such could object to any derogatory treatment (potentially stretching to the editing of a performance by a tutor, although this may be unlikely).
Further information on performers’ rights can be found on the Intellectual Property Office’s website. There is also an excellent and comprehensive resource entitled Performers Rights’, authored by Richard Arnold, which references relevant case law.
Emily Goodhand is the Copyright and Compliance Officer at the University of Reading. She tweets as @copyrightgirl and writes about relevant issues on her Copyright For Education blog.
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Every hearing in the Court of Appeal is recorded and transcribed and if you know where to look you can read it in the RCJ – you have to pay for copies.
Some years ago a researcher found the transcript of an application for leave, as we then called it, to appeal; Ormerod LJ hearing a hopeless application from a litigant in person. And the transcriber had faithfully transcribed every word, including the judge’s sotto voce “Oh Christ, no, another fucking loonie!”
You have been warned.
22 January 2013
Dear Ms Goodhand, Human Rights Blog,
Thank you very much for this interesting article about copyright.
If an advocate in person addresses the court does this also count as performance? Or a junior counsel with a solicitor? Or a paralegal? Or anyone who happens to be in court including witnesses and people in the public gallery?
Where does copyright begin and end regarding performance?
For if it is a closed materials case, where will the public be given information at all?
Perhaps everything should be made out in the open? For I am very concerned that closed materials cases will take off in a big way, not just for cases in the “national interest” but for any case at all where a public servant and hence the state is involved in any respect.
This would therefore have a major impact in all sections of our judicial system which is rightly believed to be a good system based on openness.
I would be most grateful to have a public debate on this.
Thank you so much for this excellent article.
Lawyers owe a duty to the court, don’t they? They are officers of the court, aren’t they? Have they waived their right by being called to the bar or being add to the rolls? Are they serving a public function, which is to uphold the law? Has there being any detriment to them or do they actually benefit from it (i.e. instructed by a client based on the performance)? Public interest trumps IP rights, doesn’t it?
Interesting post, but as highlighted, no chance of it being an issue whatsoever.
By the way – great to see one of the earlier pictures of barristers at the Supreme Court wearing their gowns etc. (The MPs expenses defence case I think). I am probably in a minority but I regret the latest arrangements for dress.
A fascinating topic! My knowledge of copyright law is minimal but just a couple of thoughts:
Can a ‘court’ enter into a contract? The MoJ can and frequently does so.
I am having difficulty seeing that there is any ‘performance’ here! ‘ … a performance of a variety act or any similar presentation,’ Would the ejusdem generis rule not apply to interpreting that? (Some more obvious comments are best left to comedians!)
I agree with ObiterJ regarding the application of the ejusdem generis rule – First, the structure of the provision suggests that “any similar presentation” is describing a presentation similar to a variety act. Whatever you think of barristers performances, I doubt they are doing something which is similar to a variety act. Second, even giving a broader reading to the words “any similar presentation”, it is hard to see what is similar about presenting arguments in court compared to dramatic or musical performances or a reading or recitation of a literary work.
More broadly, one of the fundamental arguments for recording and broadcast of arguments is that it facilitates the public right to watch court proceedings, which is an element of the principle of open and transparent justice. Historically, the exercise of this right has been limited to those who have the time to set aside the part of their day when the hearing is on and physically attend court. As a practical matter, this operates as a major impediment to members of the public developing a detailed understanding of the work that courts do. With technological developments, it is possible to enable members of the public wishing to exercise this right to do so at a time and place of their choice.
As much as they might not want the public attention, barristers cannot complain about members of the public watching them do their job in court. In my view, the difference between enabling the public to watch in person and enabling the public to watch remotely is one of degree, rather than kind. The risk that members of the public will receive a skewed view of proceedings exists already, as there are no requirements that a member of the public visiting a court room must stay for the whole trial, so that they receive the full context. Similarly, the risk of misreporting exists already – recording of trials only transforms the medium of misreporting from written or oral descriptions of a trial to selective editing of a visual recording. The question then is whether the risk in the case of recordings is so much greater than existing risks that courts and practitioners should impede developments which further the principle of open and transparent justice.
Geoffrey’s insight has opened my eyes (too). However, why stop with the words? The very particular arrangement of footwear, headwear, fashion accessories, and cosmetics is surely a creative ‘surge’ as our military performers would term such exploits, and a forensic performer (not to mention his/her heirs) must have some rights therein. The contrary is unthinkable.
….no..leave this indignity for Judge Judy acolytes please !
I would be extremely anxious of the prospect of being recorded. Recording being “discarded” to an uncontrolled and unquantifiable media would I believe be fair reason to refuse to appear in such proceedings.
If justice is to be guaranteed the concerns and rights of all parties must be ensured.
Such broadcast is not necessary for the effective work of the court.
Indeed the soundbites and video clips that will inevitably receive the most interest, from the broadcast media and tabloid press, will not be those that show the true value of the court.
I rather like this topic.
Perhaps the Court (or an Arbitrator) politely should ask each advocate – and perhaps each witness – “Are you appearing as a performer?”, in which case it will become clear what credit should be accorded to their argument, testimony, or performance.
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