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Performing RightsBack

PRSOver the last few years we have seen a rise in enquiries and demands for payment from performing rights societies such as PRS and PPL. Are these demands for payment legitimate, and if so why are we liable to pay them?

Introduction

When a song or piece of music is written, the person who writes it owns it. This is called copyright. The Copyright, Designs and Patents Act 1988 states that if you use copyright music in public, you must first obtain the permission of every writer or composer of the music you intend to play.

Most performers allow CD and broadcast through the radio or television for private use only. If the music is to be performed in public, permission is needed from the rights holders before each song is performed which, in turn, requires contacting a significant number of people in advance of such a performance. So what constitutes a ‘public’ performance?

Public Performance

Music is performed ‘in public’ when it is performed outside what could be regarded as the domestic circle or home life. This has been the cause of a number of cases both before and after the current legislation and can be complicated. In its most basic form the question is whether the performance was in a public place and/or whether more than 1 person can hear the performance. In Performing Right Society Ltd v Camelo [1936], a performance in a private room, clearly audible to persons dining in a restaurant, was held to be in public. Also in Ernest Turner Electrical Instruments Ltd v Performing Right Society Ltd [1943], a performance at a factory to workers while working was held to be in public.

Given the case above, it is likely that playing music in either a waiting room or in a workshop where more than one person can hear it, will be a public performance.

Often the first members know of the matter is when they are contacted by PRS or PPL. PRS and PPL represent the significant majority of rights holders, so who are they?

PRS and PPL

Both PRS and PPL are royalty collection societies. They were established to collect royalties from music created by their members and to distribute the proceeds. The difference between the two groups is the people who are likely to be members. As a general rule PRS deals with writers, composers and publishers. PPL deals with the performers or those recording the music. If you require a license from one, you will require a license from both.

What happens if I don’t obtain a Music Licence?

If you do not obtain a Music Licence, the performance of copyright music in public would be unauthorised and may constitute an infringement of copyright within the meaning of the Copyright Designs and Patents Act 1988 (as amended). This will leave you open to a claim for compensation for the lost revenue as well as the potential liability for costs.

What are the options

If you are playing the radio in a place of work and more than one person can hear it, it is likely that you need a licence. In these circumstances you have 4 options:

  1. Stop listening to the radio. If there is no music playing there is no requirement for a license.
  2. Allow staff to listen to their own music through personal players and headphones. This is a simple option and cost effective, but care should be taken to assess the risk in your workplace when considering this. Depending on the work environment, listening to music on headphones can carry a risk greater than the cost of a license.
  3. Continue to listen to music without a license. Both PRS and PPL are required to prove that it is more likely than not that a public performance has occurred. Where this is in a workplace it can be difficult. However, this is a risky course of conduct as, in the event this can be proven, compensation can be backdated and if proceedings are issued any fees are likely to be recoverable as well.
  4. Buy a license. If you have less than 4 employees, the PRS and PPL run a joint license scheme. Even with the requirement for 2 separate licenses depending on your garage the cost of a license can be minimal if considered on a daily basis.

Whichever course of conduct you choose, it is advisable to review the websites for PRS and PPL in order to ascertain the likely cost of a license. Whilst the cost of a license may be unwelcome it may result in increased productivity with happy employees and cost less than you think. Check any paperwork you have received. If you have been contacted and invoiced by PPL it is likely that the invoice is actually for two years. If they have no evidence for the last year you may be able to pay for ongoing permission only.

Paul Carroll

Solicitor

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.

Posted by Sue Robinson on 16/05/2014