Recordings of illegitimate origin

[Treadmore]

I have some questions which are kind of related to the other thread on video recordings, but a bit more general. Also there is a court case current in Scotland on bootlegging (selling the illegitimate recordings), which covers copyrights and trademarks, which touches on some aspects.

Again, UK based. Prior to the 1988 Act:

(a) was it illegal to record the performance of a musician/band without their permission? By recording I mean: either from within the audience, or more sneakily, by tapping into the mixing desk (possibly with the permission/consent/knowledge of the mixing desk staff, but not the performer).

(b) would it be illegal to "trade" the recordings obtained in the manner described in (a). By "trade" I mean swap, really - "tapers" and "traders" use "bootlegging" to refer to the unauthorised copying, packaging and commercial sale of an original (illegitimate) recording (i.e. no authorisation from the taper/recorder or from the performer). And a "bootleg" is one such unauthorised copy offered for sale.

(c) is the 1988 Act retrospective in anyway i.e. if an unofficial or illegitimate recording was made in prior to 1988, but which was not illegal then say, but would be now, is trading of it now covered by the 1988 Act or by the Copyright legislation in place when the recording was made?

Any opinions offered much appreciated

[CopyrightAid]

Hi Treadmore and welcome to the forum.

Please understand that nothing said here is legal advice (as per the rules of this forum), but I'll give it my best shot.

a) Yes. Section 182A of the Copyright, Designs and Patents Act 1988 states:

Section 182A: Consent required for copying of recording

182A.-(1) A performer's rights are infringed by a person who, without his consent, makes a copy of a recording of the whole or any substantial part of a qualifying performance.

(1A) In subsection (1), making a copy of a recording includes making a copy which is transient or is incidental to some other use of the original recording.

(2) It is immaterial whether the copy is made directly or indirectly.

(3) The right of a performer under this section to authorise or prohibit the making of such copies is referred to in this Part as "reproduction right".

b) Yes. You would be distributing illegal copies of the work, and therefore this would also be an infringement.

c) I can't say what the law prior to 1988 stated - you try getting hold of a copy of the 1956 act and you will see what I mean... But I would be very surprised if the 1956 would have allowed this.

[Treadmore]

thanks for the reply Copyright Aid - I think you're right on the likelihood that the 1956 Act would be similar, just wondered if you knew