Joined: 29 Jan 2010
|Posted: Fri Mar 22, 2013 5:47 pm Post subject:
The fact that the work on the CD or DVD is identifiable is perhaps important to what KJR proposes, in that it is not just any old blank CD, but one which purports to be an album of music by a particular artist. But that does not change the situation from the point of view of the artist and/or rights owner of the sound recording.
Let's look at the moral rights of the artist(s) who perform on the album. They have a moral right for their work not to be subject "to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to [their] honour or reputation." (Berne Convention Art 6 bis which is the source for section 80 in the CDPA). I remain to be convinced about how melting a CD or DVD so that it can no longer be played actually distorts, mutilates or modifies the actual songs being sung. What that melting treatment does is to make the songs both unplayable and unrecognisable. I think you would recognise that as a consequence of the doctrine of exhaustion of rights, a legitimate owner of a copy of a work, be it a book, CD or photograph, has the right to destroy his copy, along with several other means of disposal. What KJR proposes is simply an exercise of that right.
As far as the copyright in the sound recording is concerned, the CDPA does not advance any moral rights to the producer, so there is no cause of action there.
There is very little caselaw on the subject of derogatory treatment, but what exists*, along with recognised authorities such as Laddie, Prescott & Vittoria or Copinger & Skone James, takes a very narrow view of this moral right, and make it clear that there must be damage to the honour or reputation of the author arising from the mutilation etc. Clearly it would be extremely hard to build any case on the proposition that melting a DVD impugned the honour of the artist whose songs were on the disk.
* the best example is Confetti Records v Warner Music UK Ltd  EWCh 1274 (Ch) see paras 145 -162.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007