The 1709 Blog has received a question from a reader on the sensitive issue of what constitutes a public performance of a work. It deserves a response not only because it concerns a legal issue, one much beloved by those of us who set law examinations, involving the concept of public performance, but also because it raises questions concerning the sort of decisions that collecting societies have to make when formulating and executing their enforcement policies:
"A friend of mine runs a small jewellery shop with a workroom at the back; in the workroom he has a radio, which he listens to while he makes his jewellery. He is a sole trader. No member of the public has any access to his workroom -- which is closed off to any public access (including from the shop itself) -- and the music cannot be heard in any public area.
My friend is currently receiving threatening letters from PPL, demanding payment for performance of a work in public.
Do any of you, or any of your readers, have a definitive definition of what "in public" means, for the purposes of s16(1)(c) of the Copyright, Designs and Patents Act 1988?
PPL have their own take on it, but I can't find any legal authority to back it up:
WHAT IS A PUBLIC PERFORMANCE?
A public performance occurs whenever music recordings are played outside the domestic or family circle. Whenever a music recording is played in a commercial environment, even if only one person can hear it, it becomes a public performance and a fee is payable to PPL.
PRS seem a little more sensible:
‘In public’ means, broadly speaking, to an audience outside of his/her domestic or home circle. If the person does not obtain the required licence they may risk infringing copyright.So PRS seems to imply that there has to be a broadcast by a person "to an audience" which makes sense - that to me is a public broadcast". If PPL are correct, on the same logic if my friend listens to music while he drives to see a customer in his car, alone, he would need a licence for that".
It will be good to know what readers think -- not just those from the United Kingdom but those from other countries in which similar fact situations may already have been judicially tried and tested or policy issues resolved.
To me, from a Spanish point of view, it is clear that music "aired" in the "back-office" non accessible to the public, is not a public performance. Collecting Societies are agressive, but they should be contested when their claim is not right.
The current copyright statute, unlike those for patents, trade marks and designs, provides no penalties for groundless threats of infringement. The sooner this is changed the better. The PRS has an unenviable track record for chasing SME's who can seldom afford to defend their position in Court. Reluctantly they pay for an unnecessary licence.
I wrote an article on a very matter topic in 2009 when The Chief Constable banned music at work for the Wiltshire police force following a legal threat from the PRS. The article is at http://www.musiclawupdates.com/09Junelawupdates.htm titled "Are the PRS charging workers and customers twice over?"
Some background: In PRS v Harlequin Record Shop Brown Wilkinson J held that music played over speakers in a record shop was a ‘public performance’ for the purposes and followed the judgment of Lord Greene MR in Ernest Turner Electrical Instruments Ltd v PRS  1 Ch 167 who held that playing music to workers in a factory was a public performance saying “ It is a question of law whether these performances are performances "in public" within the language of the statute, but, in answering that question of law, the chief guide to the court is the guide of common sense. Some cases on their facts fall on one side of the line, and some on the other. In the present case, having regard to the character of the audience and all the relevant facts which bear on the matter, I have no doubt that these performances were performances "in public"” and referred Jennings v Stephens where Lord Wright MR said that when deciding what was “in public” the criterion “was the character of the audience, and the passage in my Lord's judgment to which I have referred supplies a good test of that character. Is the audience one which the owner of the copyright could fairly consider a part of his public? …”
All well and good - but not necessarily very helpful when looking at the personal use of a radio in a workplace: I had hoped that there would be a decision in Scotland but I have never found this – maybe the case was dropped (?) but this goes back to 2007 at the the Court of Session (Lord Emslie) when PRS took the garage chain Kwik-Fit to court over the use by their staff of personal radios in the workplace. Kwik-Fit argued that no licence was needed as there was no "public performance": the garage chain claimed that company policy forbade radio use at work - and even if radios were used, the noise of everyday work at Kwik-Fit would mean that radios could not easily be heard from one area to another, and its customers mostly remain in the reception area. I remain hopeful but I have never seen a decision!
I never thought I'd live to say the day when I'd write these words:
"Crosbie Fitch, where are you, now that we need you!"
After reading this episode I'm seriously reconsidering my position on copyright and its supporters.
It might amuse some (and make others despair) to learn that PPL think Spotify is incapable of being used under a public performance licence. See the PPL FAQ. This is doubly sad for the performers and record labels as Spotify and other on demand services deliver accurate line by line reporting and thus can provide an audit trail for royalty distribution.
There is a report of the Kwik-Fit case at its preliminary stage ( ECDR 2 but there are only a few lines about infringement. Haven't seen sight of it since either, alas.
Australia may be your best bet: Australian PRA v Commonwealth Bank http://www.austlii.edu.au/au/cases/cth/FCA/1992/609.html
In Canada the issue is discussed in general terms in CCTA v Copyright Board (1993) 46 CPR (3d) 359 which also has a brief Commonwealth survey (and tries to kill off the quirky Canadian authority of Canadian Admiral).
Both the Canadian and Australian cases make various attempts to define it...
In the US of course the position is different due to the detailed provisions in the Fairness in Music Licensing Act - at 17 USC 110(5) - most familiar as the subject of the WTO DSP on 'Music in bars'.
I can suggest a pre & post-copyright definition if anyone's interested:
A public performance (audio/visual exhibition) is a performance by one or more individuals in a publicly accessible area (even if solely occupied by the performer(s)), or in any area to which members of the public are admitted (even if upon payment, or other condition). A member of the public is an individual with whom the performer (and any private venue owner) has had no prior relationship (to knowledge of the performance).
NB An electro-mechanical a/v device (radio, jukebox, TV, projector) is not a performance since no individual performer is present and required (bar possible momentary operation).
As to whether a collection society should be able to collect a license fee, in view of our egregious perpetuation of Queen Anne's abominable and anachronistic 18th century privilege, of course not.
SI 2010 No.2694 removed the protection clubs, churches and societies had for the playying of music. By the end of this year they will all have to buy a PPL licence to enable recordings to be played. Since this changes the way 'public' is perceived it is not surprising that any form of playing recordings outside the four walls of your house is likely to incur a notice to purchase a licence. You can thank the EU for this!
I thought you might be interested in this interpretation of the public (which includes the family and friends, apparently!) on the MPLC site (scroll down): http://www.themplc.co.uk/page/faqs
"Only one person is viewing the movie, do we still need a licence?
Yes. A public performance license is needed anytime a movie is performed where your normal circle of family and friends have access."
That seems erroneous - even for the cartel...
1. It strikes me that "outside the domestic or family circle" also describes someone using their ipod outside the home. But surely no court would see such use as a public performance. Take that a step further: would the jeweller be liable for a PPL licence if he listened to music at work via an ipod? The distinction would then be between earphones and a radio speaker.
2. What about the home worker listening to music in their home office, where they are clearly not in a full domestic setting?
Both these scenarios would make for an excellent test case to set alongside the music in hotel bedrooms decision we already have (sorry haven't got the citation to hand).
Most DVDs and CDs have a restriction about
'public performance' on the 'cover' -- I have not seen one that specifies such a peculiar ,very at odds with common, definitions of what is NOT a private performance.
I work from home, does that mean that if I was to listen to the radio and clean my paint brushes in my private lounge room, it would be 'private performance', but If I was to do the same in my private studio it would be 'public performance'?
Is listening to music out of doors, in the middle of an empty paddock not 'private'.
Is 'private' only within the walls of your own home?
Wonder whether the sales contract on the purchase of a Cd/ DVD (with its 'missing fine print') could be said to contain a unstated redefinition of 'private' that is deliberately tending to mislead /invalid contract under your consumer laws?
I would go with this is not a performance in public more as a matter of 'feeling', but it would be in public if there were a(nother) employee present:
Can a state of being physically alone be called 'public'
I have had reason to look at this recently as the PPL are getting a disgraceful name for themselves right now.
Whilst I am a lawyer this is not my area so I have no special knowledge. I have been looking for a definition of 'family circle' or 'domestic' with no luck but I am grateful for the earlier references to other jurisdictions.
I do think it is interesting that the PRS do not want to pursue one man bands playing music in the 'business backroom'.
Is the pragmatic or do they know something that we don't?
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