Section 22 of the Copyright and Neighbouring Rights Act 2000 protects the person who invests in making a recording — a right separate from the copyright in the music and words recorded.
Who and what is protected
“Producer”, in relation to a sound recording, means the person or legal entity that undertakes the initiative and responsibility for the making of the sound recording.
“Sound recording” means any exclusively aural fixation of the sounds of a performance or of other sounds, or of a representation of sounds, regardless of the method by which the sounds are fixed or the medium in which they are embodied — but does not include a fixation of sounds and images such as the sound-track of an audiovisual work.
Initiative and responsibility, not ownership of equipment. The producer is whoever organised and stood behind the making of the recording. It may be a record company, a church, a band, a broadcaster or an individual — and there is no presumption of producer status in the Act, so recording agreements and payment records are the evidence.
A film soundtrack is not a sound recording. It is expressly excluded, and is protected as part of the audiovisual work under section 4(1)(a)(v), whose economic rights vest in the film’s producer under section 18(5)(a). A soundtrack album released separately is a different matter — that is a sound recording in its own right.
Under section 3(6), the Act applies to sound recordings whose producer is a citizen, that were first fixed here, or that were first published here.
Section 22(1) — the exclusive rights
(a) the direct or indirect reproduction of the sound recording in any manner or form;
(b) the importation of copies of the sound recording;
(c) the making available to the public by sale or other transfer of ownership of the original or copies that have not already been subject to a distribution authorized by the producer;
(d) the rental to the public or public lending of a copy, irrespective of the owner of the copy rented or lent;
(e) the making available to the public of the sound recording, by wire or wireless means, in such a way that members of the public may access it from a place or at a time individually chosen by them.
“Direct or indirect ... in any manner or form” in paragraph (a) is wide. Re-recording from a broadcast, ripping from a disc, or sampling are all reproductions of the recording.
Paragraph (c) contains the exhaustion rule — copies that have not already been subject to a distribution authorized by the producer. The same structure as section 6(1)(d). Once a copy has been sold with authorisation, it may be resold.
Paragraph (b), importation, has no such qualification — so, as with section 6(1)(f), it is not exhausted by an authorised sale abroad. Parallel importing engages it. But section 15, read through section 25(d), permits importation of a copy for a person’s own personal purposes.
Paragraph (d) survives exhaustion — rental and lending apply irrespective of the owner of the copy. Owning a CD does not entitle you to rent it out.
Notice what is not in the list: there is no exclusive right of broadcasting or public performance of a sound recording. Those uses are dealt with instead by section 23, which converts them into a right to equitable remuneration rather than a right to prohibit.
The layers in a single recording
| Layer | Right holder | Provision |
|---|---|---|
| The music and lyrics | The composer and lyricist — or their employer or assignee | s 6, s 18 |
| The performance | The performers | s 21 |
| The recording | The producer | s 22 |
| Remuneration for broadcast or public performance of the recording | Producer and performers, half each unless otherwise agreed | s 23 |
| A broadcast of it | The broadcasting organisation | s 24 |
| Where the material is traditional | The competent authority for expressions of folklore | s 30 |
A broadcaster or business that has a licence from the producer has not thereby cleared the musical work. A person who has bought out the composer has not cleared the recording.
And a recording of a traditional song raises a further question. Section 30(1) protects expressions of folklore against reproduction, communication to the public and adaptation where those uses are made for commercial purposes or outside their traditional or customary context — with authorisation vested in the competent authority under section 30(4). Commercial recording of traditional material engages Part V as well as sections 21 and 22.
Section 22(2) — the term
The rights are protected from the publication of the sound recording until the end of the fiftieth calendar year following the year of publication — or, where the recording has not been published, from the fixation until the end of the fiftieth calendar year following the year of fixation.
Published is defined in section 2 to require tangible copies made available to the public in a reasonable quantity, with the consent of the producer or a successor in title. Note that under section 23(4), a recording made available online in such a way that members of the public may access it from a place and at a time individually chosen by them is treated as published for commercial purposes for the purposes of the remuneration right.
The limits in section 25
Section 22 opens with “Subject to section 25”. Under section 25, the producer’s rights do not apply to (a) the use of short excerpts for reporting current events; (b) reproduction solely for scientific research; (c) reproduction solely for face-to-face teaching — except for performances and phonograms published as teaching or instruction materials; and (d) cases where, under Part II, a work may be used without the author’s authorisation.
Enforcement is the same as for copyright: injunctions and impounding under section 26, damages and destruction under section 27, the offence in section 28, and the anti-circumvention and rights management provisions in section 29.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 2, 3, 4, 6, 15, 18, 21–30
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.