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.
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