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GAZETTE
JULY/AUGUST 1992
A licence is required in any premises where music is played to the public.
radio, TV, concerts etc.) the right to
broadcast the work and the right to
include the work in a cable
programme. These rights are
generally referred to as "performing
rights".
voluntarily enter into such licence
agreements and pay the required
annual fee. It should be pointed out
that licence fees are not particularly
expensive and, for example, the sort
of fee which would require to be
paid by a small public house in the
country which would be using a
television and/or a radio in the bar
or lounge would be approximately
£117.00 per annum.
In the event that a user of music
fails or refuses to take out a licence
or to pay royalties to the PRS and
IMRO, the normal relief which will
be sought will be an injunction to
restrain the owner or occupier of the
premises from playing any music
whatsoever in breach of the
composers copyright together with a
claim for damages in a sum
equivalent to royalties calculated to
be due to that date. While a small
publican or shop owner in a country
village may not be too concerned if
he or she is prevented from playing a
radio in their premises, an injunction
of this nature would cause very
serious consequences to premises
such as hotels, discotheques or clubs
which would rely on music for a
large part of their business
generation. Indeed, a refusal by
promoters of live concerts to pay a
royalty fee could leave them facing
an injunction restraining the concert
from taking place.
The Law
The law is to be found for the most
part in the Copyright Act, 1963
("the Act") and relevant case law.
The Act defines copyright as being
the exclusive right to do (and to
authorise other persons to do)
certain acts in relation to that work.
In other words, the owner of the
copyright in a work has exclusive
rights in it, subject to any contrary
provisions in the Act. Section 8 of
the Act confirms that copyright
subsists in every original musical
work subject to the provisions of
that section and that the acts
restricted by the copyright in a
musical work include:-
a. reproducing the work in any
material form
b. publishing the work
c. performing the work in public
d. broadcasting the work
e. causing the work to be
transmitted to subscribers to a
diffusion service (i.e. cable
operators such as Cablelink)
f. making any adaptation of the
work.
Section 10 of the Act provides that
the author of an original musical
work is the person entitled to the
copyright in that work.
Accordingly it is to be noted that
song writers and composers have
exclusive rights under the Act to
perform the work in public (through
" The general rule which has
emerged from decisions by courts
over the years is to the effect that
any performance which takes
place outside the domestic circle
is to be regarded as " p u b l i c ".
Public Performance
Reference is made above to Section 8
of the Act in which it has been
pointed out that it is prohibited to
perform a work in public, the
copyright of which is vested in the
author, without the consent of that
author or without the consent of
IMRO and the PRS in the event that
the author has assigned such right to
the PRS and IMRO. Unfortunately,
the Act does not define what
constitutes a performance " in
public." The general rule which has
emerged from decisions by courts
over the years is to the effect that
any performance which takes place
outside the domestic circle is to be
regarded as "public" for this
purpose, regardless of the nature of
the entertainment or the kind of
premises at which the peformance
takes place and irrespective of
whether a charge for admission is
made. For example, performances in
clubs at which attendance is
restricted to members and
performances in factories have been
found to be public performances. In
this regard, the dicta of Mr. Justice
Kenny is
PRS
-v-
Rosses Point
Hotel
Company Limited
(unreported High
Court) 1966 is of assistance where he
said:
"Owners of hotels and licensed
premises in this country who intend
to place television or radio sets in
rooms to which the public have access
should get licences from the
Performing Rights Society Limited. If
they do not, they will probably find
themselves unsuccessful defendants in
actions in the High Court".
In addition to the playing of music
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