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Occasional posts on subjects including field recording, London history and literature, other websites worth looking at, articles in the press, and news of sound-related events.

31 October 2013

Sound and the Law: What are the limits on recording?

EARLIER THIS MONTH, an official directive was issued covering the use of the internet and mobile phones in Tajikistan. It has the title Ethics Code for an e-Citizen and, among other things, seeks to dissuade citizens from talking loudly on mobile phones in public and from disseminating ‘unpleasant sounds and unprintable words’ via electronic means.

In the United Kingdom, a number of laws place specific limits on what sounds you can get away with making, and where and what you can record. Pragmatism mostly rules and thankfully there are as yet no uplifting goals like the ones in the Tajikistani directive, such as the hope that ‘positive thinking, positive communication, and positive action should prevail in virtual space’.

This blog post digs up some of the potential legal limits which field recordists might encounter. Those of us recording the sounds of urban environments in particular might run into problems similar to those besetting photographers, with overzealous officials and others claiming that recording in such-and-such place is illegal, that it infringes someone’s human rights, and so on.

There’s also the growing habit of bringing words like ‘terrorism’ and ‘security’ into play as an attempt at shut-up-and-do-as-you’re-told, but as we’ll see there are few situations in which such claims have any legal, let alone rational, substance.

WHERE YOU WILL GET INTO REAL TROUBLE FOR RECORDING

Criminal law in the United Kingdom places few explicit limits on recordists. One example of a very definite stricture is Section 9 of the Contempt of Court Act 1981, which makes it illegal to:

use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the leave of the court.

Under section 34C of the Prison Act 1952 you’re also in trouble if you’re one of those reprobates who:

takes a photograph, or makes a sound-recording, inside a prison, or transmits, or [who] causes to be transmitted, any image or any sound from inside a prison by electronic communications for simultaneous reception outside the prison.

The Act helpfully defines what a sound recording is:

“sound-recording” means a recording of sounds on any medium from which the sounds may by any means be reproduced.

Neither photographs nor, for obvious reasons, sound recordings are described as possible espionage activities in the Official Secrets Act 1911. Section 1 of the Act instead describes information-gathering for hostile ends such as making:

any sketch, plan, model, or note which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; or [passing] any sketch, plan, model, article, or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy.

Over the years a changing of list of ‘prohibited places’ has been developed in law from the terms of the Official Secrets Act where photography and, in later definitions, digital recording of all kinds could involve breaking the law.

For example, the Official Secrets (Prohibited Places) Order 1994 adds a number of nuclear installations, including Sellafield, Capenhurst and Harwell. Military bases are also off-limits. Schedule 17 of the Communications Act 2003 defines the premises of communications providers as prohibited places too:

For the purposes of the Official Secrets Act 1911 (c. 28), any electronic communications station or office belonging to, or occupied by, the provider of a public electronic communications service shall be a prohibited place.

WHERE PROPERTY OWNERS OR THEIR STAFF MAY OBJECT

More and more of what appear to be public spaces are, in fact, privately owned. Shopping centres, many newly-built squares and plazas, and that slender corridor of possession between the side of a building and the row of brass studs set into the pavement are all private property. Under civil law, property owners have the right to tell you to stop recording within their premises or on their land.

They can ask you to leave if you don’t comply too, but they can’t prevent you recording sounds emanating from within private premises if you’re standing outside in a public place. For a good overview of the legal ins and outs as they affect photographers, see this section on Mike Slocombe’s urban75 website.

By the same token, photographers should be able to take pictures of buildings so long as they’re standing on private land. In practice it doesn’t always work out this way, as a video from the London Street Photography Festival shows:


The impression you may get from the encounters in the video is of security staff who don’t know much about the law and who may be worried about losing their jobs if they’re not seen to be doing something. But there’s always the chance of someone who simply wants to assert themselves or alleviate the boredom of a long, uneventful shift.

What they can’t do at all is demand that you hand over your recorder or delete files from it. Even the police can only do the former, and the latter not at all. However annoyed you may feel, first make sure that you really are in the right and, second, don’t swear, whine, lose your cool, or start jabbing your finger at them. Life’s easier in the long run if you’re calm and polite while you stick to your guns.

HUMAN RIGHTS AND MINDING YOUR OWN BUSINESS

The law on privacy is rather vague, and much of what is set down applies not to individuals, but to organisations. For example, Article 8 of the Human Rights Act 1998 provides general protection for the privacy of an individual’s home and family life, and their personal correspondence, and this obviously extends to recording what people say among themselves.

In a similar spirit, the CCTV Code of Conduct (revised 2008) from the Information Commissioner’s Office recommends that operators generally shouldn’t record conversations:

CCTV must not be used to record conversations between members of the public as this is highly intrusive and unlikely to be justified. You should choose a system without this facility if possible. If your system comes equipped with a sound recording facility then you should turn this off or disable it in some other way. There are limited circumstances in which audio recording may be justified, subject to sufficient safeguards.

But both these aim to govern the behaviour of organisations towards individuals, not the behaviour of individuals themselves.  In 2008, the then Home Office minister Tony McNulty confirmed in response to photographers’ queries that:

There is no legal restriction on photography in public places, and there is no presumption of privacy for individuals in a public place.

If you’re a lone field recordist simply pursuing your hobby then you’d have to go to unusual and creepy lengths to fall foul of the law on privacy grounds. If a recordist persistently followed someone around to record everything they say, they could have an injunction brought against them on the grounds of harassment. This constitutes an outer limit to ‘no presumption of privacy’ and one which you’d hope no-one reading this intends pushing.

Otherwise what governs your behaviour will be a matter of personal belief, most likely an application of the Golden Rule to do unto others as you’d have them do unto you. For example, I don’t home in on private conversations and record them at great length, whether it’s people on the bus or sitting outside a pub, and certainly would not allow through anything which might help a stranger identify them. It’s a different matter when someone’s broadcasting their voice loudly with the aim of being heard by people they don’t know, such as with soapbox speakers.

If you want to see an example of a position worked out with both moral and legal implications in mind, the BBC’s editorial guidelines on privacy are worth reading.

Lastly, an intricate set of rules in the Telecommunications Act 1984 applies to recording telephone conversations, both on the public network and on more limited systems such as a company’s internal phone lines. The general gist of this, the Regulation of Investigatory Powers Act 2000 and related laws, is that it’s okay if you record a phone conversation you have with someone else, even without their consent, provided you don’t make the recording available to a third party. More extensive and detailed rules apply to organisations.

WHAT COPYRIGHT DOES AND DOES NOT APPLY TO

Despite the universality of copyright, many still have only a hazy idea of its scope. For example, I’ve come across people who believe that they can string two or three words together and then copyright that combination, as used in a company name or other venture. Not so.

Such flaky opportunism might extend to the belief that copyright automatically applies to utterances. Again, this isn’t correct. The Copyright, Designs and Patents Act 1988 makes it clear that any kind of performance needs to be both original and established in a fixed medium before it can be copyrighted, for example by writing it down:

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. (Chapter 1, Section 3)

Field recordists have much more reason to be cautious around copyrighted music. Suppose you’re recording outdoors somewhere, and from a nearby house can be heard the muffled sounds of Cypress Hill’s Another Body Drops. The Copyright, Designs and Patents Act allows some limited exceptions with copyrighted works in general, such as for news reportage and what’s termed incidental inclusion. But Section 31 of the Act underlines the stringency with which this applies to musical works in particular:

A musical work, words spoken or sung with music, or so much of a sound recording [F1or broadcast] as includes a musical work or such words, shall not be regarded as incidentally included in another work if it is deliberately included.

Proving whether an inclusion is truly incidental or not might seem too much trouble for a copyright holder, but bear in mind any legal action resulting will occur in the sphere of civil law, where the standards of proof needed by whoever’s bringing the action are lower than those needed in criminal law.

In practice, rights holders have enough on their plates with worries about counterfeiting and mass filesharing. It’s not so much that, in your two-minute recording of a residential street in Lower Sydenham, about 15 seconds of Cypress Hill can be discerned. It’s more what you intend to do with the recording. The worst that’s likely to happen if you’re simply making the recording freely available through your own blog is a snotty cease-and-desist message from a solicitor. Whether you then choose to obey its terms or reject them is up to you, but it’s a bad idea simply to ignore it.

If in doubt, get advice. Look for a legal practice with a focus on intellectual property and see if you can at least get a free half-hour consultation – many firms will offer that service.

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