The Gazette 1992

GAZETTE

JULY/AUGUST 1992

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". " 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 ". 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, 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 the Act does not define what constitutes a performance " in 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". Public Performance clubs at which attendance is restricted to members and

A licence is required in any premises where music is played to the public.

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 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 Law The law is to be found for the most part in the Copyright Act, 1963

In addition to the playing of music

237