(1) A person infringes the rights of a person having recording rights in relation to a performance who, without his or her consent or that of the performer, makes a recording of the whole or any substantial part of the performance, otherwise than for his or her private and domestic use.
(2) In an action for infringement of those rights brought by virtue of this section damages shall not be awarded against a defendant who shows that at the time of the infringement he or she believed on reasonable grounds that consent had been given.