The Gazette 1992

GAZETTE

JULY/AUGUST 1992

(i.e. performances) by mechanical

means i.e. radio and TV, record

players, cassettes, background music

devices etc. requiring a licence, live

performances of music on stage and

in concert also require a licence. In

practice, licences are issued for

numerous categories of premises,

including cinemas, clubs, concert

halls, dance halls, discotheques,

bingo halls, hotels, universities,

ships, aeroplanes, sports stadia,

public houses, factories, shops and

many others. It is the policy of

IMRO to grant a licence to any user

of music who needs it, provided only

that the person concerned is

prepared to enter into the standard

form of licence contract and pay the

appropriate royalties. The onus lies

on a user of music who proposes to

play or perform music to obtain the

permission of the copyright owner

before the music is played or the

performance begins. As IMRO is the

assignee in most instances of the

obtain the permission of IMRO,

which is obtained by way of securing

the licence contract.

I MRO ' s Licences

The licences issued by IMRO are in

the form of contracts which run

from year to year until they are

cancelled by either party. These are

blanket licences which authorise the

public performance of any of the

millions of works which IMRO

controls on behalf of song writers

and composers throughout the world

and the royalties payable under them

vary from time to time as the nature

or extent of music usage changes in

the premises concerned. The general

nature of the licence contract is that

it authorises the licensee to perform

IMRO's repertoire in return for

which he undertakes to pay the

appropriate royalties.

Once a licence is entered into the

payment of royalties becomes a

contractual obligation and therefore

any licensees who subsequently fail

to pay royalties are liable to action

in the courts by way of ordinary

contract debt. It is only in the event

that a music user fails or refuses to

enter into a licence with IMRO that

the appropriate course of action

taken by IMRO will be to seek an

injunction together with damages. At

present, in excess of 10,000

establishments are covered by

IMRO's licences in Ireland.

It should be noted that if a

in public without the consent of the

owner (the composer or IMRO) then

the copyright owner has a claim

against not only the promoter of the

performance but also against the

proprietor of the premises, where the

proprietor permits the premises to be

used for the performance. This is

provided for by Section 11 (4) of the

Act which goes on to provide in sub-

section 5 that the liability of the

owner shall not apply in a case

where he was not aware or did not

have reasonable grounds for

suspecting that the performance

would amount to an infringement of

gratuitously or for a nominal

consideration. It is the policy of

IMRO where possible to grant

licences to the proprietor of the

premises where music is to be used

or where concerts are to be held.

This relieves the promoter of a

concert from having to apply to

IMRO for a special permit and

promoters accordingly should make a

point when hiring premises for a

function or a concert to ensure that

the proprietor holds a licence from

IMRO as otherwise the promoter

himself will be obliged to apply for

a special permit.

Assessment and Payment of

Royalties

The royalty charges payable by

licensees are calculated under a series

of carefully devised tariffs which

take account of the different

circumstances in which music is

performed in the various categories

of premises and types of

entertainment. Some of these tariffs

have been settled by negotiation with

National Associations representing

the classes of music user to whom

they apply.

IMRO's royalties are payable

annually in advance, and as it is a

non-profit making body, all the

royalties it collects are distributed to

the authors and composers after

deduction only of administration

costs.

Conclusion

In conclusion, it should be pointed

out that frequently the PRS and

IMRO are confused with another

separate body called Phonographic

Performance (Ireland) Limited (PPI).

This is an organisation similar to the

PRS and IMRO but its purpose is to

protect the owner of the copyright in

sound recordings rather than the

lyrics or composition of the musical

work itself. In simple terms, a record

producer will usually hold the

the record. The organisation which

looks after the protection of the

PPI. The separate and distinct

forms the subject matter of the

record or tape is quite separate and

this copyright is protected by IMRO.

Users of sound recordings outside of

the domestic sphere often complain

about the fact that they are obliged

to pay royalties not only to PRS or

IMRO but also to PPI. This is

probably due to their failure to

understand the difference between

the copyright of the composer and

the copyright of the record producer,

both of which are essential as both

are required before the song or

musical work can be listened to

and enjoyed by the ordinary

consumer.

Because copyright can be such a

nebulous concept without physical

shape and being incapable of

registration, it is a common

misconception that copyright works

can be used without payment to the

creator of a royalty. It is hoped that

this article goes some way in

explaining the fallacy of any such

assumption and assists towards an

understanding of the basis of the

liability of all music users outside of

the domestic sector.

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