MEDEV

School of Medical Sciences Education Development

It has slowly been dawning on me that performance (artistic works) are not covered by copyright UNTIL they have been recorded (thanks to Alan Tuck and the Newcastle Univeristy lawyers Ward Haddaway). This could affect any teaching activity (where the institution asserts copyright ownership over teaching materials created by staff) that is recorded (audio, visually, etc.), where the member of staff has a right remaining in the performance of the [lecture, teaching episode]. The Copyright, Designs and Patents Act 1988 states: 

"Literary, dramatic and musical works.

(1)In this Part— “literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes—
  (a)a table or compilation [F1other than a database], F2. . .
  (b)a computer program; F3. . .[F4(c) preparatory design material for a computer program][F5and
  (d)a database]
“dramatic work” includes a work of dance or mime; and
“musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.
(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.
(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." CDPA 1988.

and

"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." CDPA 1988.

Therefore each participant is entitled to the performance right until it is recorded. The *recording* is covered by copyright.