Publishing a recording of a public talk. Legal?

[joris2013]

Hi, I made an audio recording of a fascinating (ticketed) talk by a famous author recently and want to put it online for others who'd be interested in hearing it. It was an hour long with, say, 10 minutes of a reading from one of his books.

I'm not intending to make any profit from it (I'd release it under a Creative Commons license), and I'm pretty sure the organisers made no official recording.

I suspect I'd need to get the author's permission (at least morally that seems the right thing to do), but perhaps I'd need the permission of the venue / organisers / the author's interviewer too?

Or maybe the situation is: it's a public event, it was just a conversation that I recorded and I have the right to do with it whatever I like?

Thanks for any advice!

[AndyJ]

Hi joris,
There are several strands to this. If the actual talk (apart from the reading) was entirely unscripted then it would not be subject to copyright, simply because any eligible work has to be fixed in physical form, in writing, on tape, on video etc:

Section 3(2) Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

In other words by making a recording, you have created the copyright, although that does not mean that you own the copyright in the talk, just in the sound recording of it. There is a famous case from 1900 called Walter v Lane which established this legal principle, but just to be clear unlike the Walter v Lane case, you do not own the copyright in the talk itself because you did not not contribute any additional creativity to the talk itself in the way that the newspaper reporters were said to have done in that case.
The status of your recording is covered by Section 3(3) which says:

(3) It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded.

The talk itself would probably be classed as a performance, and so you should have obtained the permission of the participants before making the recording, as one of a performer's rights is that of deciding whether this may be recorded.

Section 182 Consent required for recording, &c. of live performance.

(1) A performer’s rights are infringed by a person who, without his consent—

(a) makes a recording of the whole or any substantial part of a qualifying performance directly from the live performance,

(b) broadcasts live, the whole or any substantial part of a qualifying performance,

(c) makes a recording of the whole or any substantial part of a qualifying performance directly from a broadcast of, the live performance.

It sometimes permissible, especially where circumstances make it impossible to obtain prior permission, to make the recording at the time and get the permission afterwards, provided of course there is no attempt to exploit the recording before getting permission. This is what you should seek to do.

The event organisers do not need be involved in this. At most it may have been a condition of entry that members of the audience did not make recordings or take photographs, but that is unrelated to copyright, and normally it would exceptionally difficult and therefore unlikely that anyone would try to enforce this contract after the fact.

And finally even if there is any doubt about whether the talk was a performance (I think it was), the reading of extracts from his book by the author will definitely be protected because the book will be in copyright and the reading of it is most definitely a performance, much as a play is the performance of a work of drama.

The fact that you do not intend to make a profit from your use of the recording will probably make getting permission from the participants much easier.

I hope this helps to clarify things

[joris2013]

Wow thank you Andy! That's the clearest, most informative reply the internet has ever provided me. I'll go ahead and ask the author if he doesn't mind.

Just to make it crystal clear: to own the copyright in the audio recording means that I have control over how it is licensed, but the performer has the right to veto any license I propose to him/her?

I should really find this stuff out for myself. Would you say the Copyright, Designs and Patents Act 1988 is the main law we should be looking at in the UK if we want to get our heads around this?

Thanks again, and so pleased with your reply (and sorry mine took so long)

[AndyJ]

Hi,
Yes, being the owner of the copyright in a work means that you the exclusive right to:

(a) to copy the work (see section 17);
(b) to issue copies of the work to the public (see section 18 );
(ba) to rent or lend the work to the public (see section 18A);
(c) to perform, show or play the work in public (see section 19);
(d) to communicate the work to the public (see section 20);
(e) make an adaptation of the work or do any of the above in relation to an adaptation (see section 21);

(all references are to the Copyright Designs and Patents Act 1988)

but the performer has the right to consent or not to the making of the recording.

And yes, the Copyright Designs and Patents Act 1988 (CDPA) is the main statute as far as modern copyright is concerned, but there are also around 20 statutory instruments and a handful of European Directives which cover various aspects of copyright, not to mention the decisions of the courts over the years which further shape the actual law and its interpretation. And because the CDPA has been heavily amended over the past 25 years it's in a bit of a muddle.