It is in fact an updated version of an earlier notice issued in January (which we may have missed on this blog) entitled "Performance of Live Music" and comes hot on the heels of the notice about knitting and sewing patterns.
As the IPO explains "This notice provides advice for people who may wish to perform music live. This notice is not meant as a substitute for legal advice on particular cases, but it can help readers understand some of the issues involved. It is not a conclusive view of the law - only a decision of the court can provide that."
Like most copyright practitioners, I am all for providing more accessible information to the public about copyright, but looking at this notice, I wonder whether it is right to do so at the expense of accuracy.
Take, for example, the following extract from the notice.
The responsibility for holding licences to allow the public performance of live music falls to venues where the performances take place, for example a pub, club or village hall.
I always understood that the primary restricted acts in copyright law were (in this case) performing or playing music in public or authorising others to do so, so that one might say that the primary responsibility for holding licences falls to the performers. It is undoubtedly true that venues are potentially liable for secondary infringement, but that requires at least a degree of knowledge (there is a defence for a venue owner who believes on reasonable ground that the performance would not infringe copyright) and only applies to places of public entertainment.
What the IPO seems to have done is to conflate the law with practice - the sentence quoted above is immediately followed by:
Provided that the venue that you are performing in has an up to date public performance licence from PRS then in almost all cases no further action is necessary in order to perform the music and lyrics from a published copyright work.
which is undoubtedly true and reflects the practical reality of how public performance of live music is licensed:
What do readers think? Are they willing to excuse the misleading statement of law on the basis that it accurately reflects the reality of licensing practice?
The venue may also need a licence from PPL. Didn't a post earlier today mention that PPL prosecutions are up? So not only misleading in law but also in practice. Not to mention the obligation under certain licences to report the titles of music performed.
ReplyDeletePeter,
ReplyDeleteThe title this particular Copyright Notice is: "Performance of live music" and so strictly speaking a PPL licence would not be required, unless the venue also provided DJ sessions and the like. However that would not be of any concern to a performer of live music to whom this notice is targeted.
The bit about "performing or authorising the playing of music" is exactly the point. The venue's licence is not the sole party obliged to pay in all circumstances. Promoters of live tours/gigs are obliged to secure a licence and pay a PRS tariff based upon a % of gross ticket sales. I would have thought the IPO would prefer to give a complete picture.
ReplyDeleteThanks for those comments. I received another offline comment arguing that the venue owner is likely to be authorising and therefore jointly liable, especially in the light of the Australian HC decision in APRA v Metro on George. I don't know if others agree, but my guess is that in the UK, APRA v Metro on George would be looked at as a section 25 case, with the notices from APRA removing the defence that the nightclub owner might have otherwise had
ReplyDelete