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 copyright owner it is necessary to obtain the permission of IMRO, which is obtained by way of securing the licence contract. 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 I MRO ' s Licences

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

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.

present, in excess of 10,000 establishments are covered by IMRO's licences in Ireland.

It should be noted that if a copyright musical work is performed 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 copyright or gave the permission 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. 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. Assessment and Payment of Royalties

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 copyright in the sound recording of the record. The organisation which looks after the protection of the copyright of the record producers is PPI. The separate and distinct copyright in the musical work which 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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