(1) Subject to the provisions of this section, the High Court may, on the application of a person who wishes to make a recording from a previous recording of a performance, give consent in a case where—
(a) the identity or whereabouts of a performer cannot be ascertained by reasonable inquiry; or
(b) a performer unreasonably withholds his or her consent.
(2) Consent given by the Court has effect as consent of the performer for the purpose of—
(a) the provisions of this Part relating to performers' rights; and
(b) section 131(3)(a),
and may be given subject to such conditions as the Court may specify in the order.
(3) The Court shall not give consent under subsection (1)(a) except after the service or publication of such notices as may be required by rules made under section 89 or as the Court may in any particular case direct.
(4) The Court shall not give consent under subsection (1)(b) unless it is satisfied that the performer's reasons for withholding consent do not include the protection of any legitimate interest of his or her; but it shall be for the performer to show what his or her reasons are for withholding consent, and in default of evidence as to his or her reasons the Court may draw such inferences is it thinks fit.
(5) In any case the Court shall take into account the following factors—
(a) whether the original recording was made with the performer's consent and is lawfully in the possession or control of the person proposing to make the further recording;
(b) whether the making of the further recording is consistent with the obligations of the parties to the arrangements under which, or is otherwise consistent with the purposes for which, the original recording was made.
(6) Where the Court gives consent under this section it shall, in default of agreement between the applicant and the performer, make such order as it thinks fit as to the payment to be made to the performer in consideration of consent being given.