Briefing Note - An Overview of Recording Rights in the UK

Recording rights in performances are conferred by Part II of the Copyright, Designs and Patents Act. Recording rights are capable of subsisting in all performances in which performer’s rights subsist. These rights apply automatically and independently of copyright. Recording rights are conferred in the event that the criterion for performance rights have been satisfied, in addition to the requirement that the performance takes places pursuant to an exclusive recording agreement.

First Owner of Performance Rights

Recording rights are initially owned by the performer and may be licensed to a third party. Where an exclusive recording contract is in place, the licence is treated as though it is an assignment and is therefore treated as an owner of the rights concurrently with the owner. This means that the rights owner is entitled to sue in his own right and bring any defences that would otherwise be available to the performer.

Recording Rights subsist when in a performance when a recording company or other person has exclusive rights to record is a qualifying person or a licensee (who need not be an exclusive licensee) or an assignee of a person with an exclusive recording contract.

Exclusive Recording Contracts

An exclusive recording contact is formed between a performer and another person which entitles that person to the exclusion of all others, including the performer to make recordings of one or more performances with a view to commercial exploitation: s185(1).

Unlike literary, artistic and musical works that find their protection in Part I of the Act, there is no requirement for originality or professionalism in the performance in order for the recording to subject to the protection by the Act.

Duration of Recording Rights

The protection of recording rights runs for 50 years from the date of the recording. If the recording is released within that initial term, protection continues under Part II for an additional 50 years.

A recording is defined as a film or sound recording made directly from a live performance, broadcast of the performance or a recording made from another recording of the live performance.

Film and sounding recordings take their meaning from the Part I of the Act. Part I of the Act defines films as any medium from which moving pictures may be produced. This would naturally include film present in cinemas, and those embodied on any media that were capable of reproducing it, and in any format.

A sound recording is a recording of sound from which the sounds may be reproduced, or a substantial part of a literary, dramatic or musical work which sounds reproducing the work may be made, regardless of its form or medium and method reproduction. For the purposes of Part II of the Act, a sound recording is distinguished and treated separately to the film, whereas under Part I of the Act, a soundtrack to a film is treated as part of the film.

A broadcast excludes a transmission over the internet, unless the broadcast takes place at the same time as the transmission over the Internet takes place: s 6(1) & (1A): Copyright, Designs and Patents Act.

Infringement of the Recording Right

It is an infringement of the recording right to record the whole or a substantial part of a performance without the permission of the exclusive licensee of the performer or the performer themselves: s 186; shows a recording in public: s 187; or communicates that work to the public.

Performers' rights also interface with recording rights.