FEDERATION OF RECORDED MUSIC SOCIETIES

COPYRIGHT LICENSING FACTSHEET

What is Copyright?
Copyright exists in all original literary, artistic, dramatic or musical works. The copyright is created the moment a work is "fixed" i.e. written down, recorded or broadcast. There can be many copyrights in one work e.g. the words, any translation, the music, any arrangement of that music and the typesetting.

How long does copyright last for?
Copyright generally lasts for the lifetime of the creator and then to the end of the 70th year afterwards. So for Elgar, say, who died in 1934, his original music came out of copyright in 2005. However copyright also exists in the editing, arrangement and reconstruction of previous music compositions and only expires 70 years after the death of the editor, etc. Copyright in recordings lasts for 50 years.

Why do we need a licence?
It comes as a shock to many music lovers, that to meet and play their own recordings in a formal group is in breach of copyright law and requires licensing. The permission that comes with every music CD only gives the purchaser the right to play that recording in a domestic environment, in other words the immediate family. Performance to any other grouping is regarded as "public performance" and this applies even where the group meets in a private house. Clearly an organisation such as a recorded music society comes into this category. Furthermore, although it might be thought that recorded music presentations aimed at musical understanding and appreciation are "educational" in nature, the licensing authorities will only consider exemption on such grounds where the activity is part of a structured learning programme with formal study and coursework. As a general rule, therefore, our recorded music presentations are regarded as "recreational" activities.

What licences are necessary for recorded music societies?
The Performing Rights Society (PRS) represents composers and publishers of music and collects revenues under various schemes for distribution to the original copyright owners. Whilst much music is in "the public domain", being more than 70 years old, it is convenient and economic to take advantage of the FRMS licence cover. The blanket nature of our scheme means that all music is covered and therefore automatically includes modern editions, arrangements, transcriptions or reconstructions of older music as well, of course, as all music composed within the last seventy years. Because the scheme is all-encompassing, the PRS license costs charged via the Federation are correspondingly a lot more favourable than if separate licences were to be obtained independently by affiliates and are free of additional administrative effort such as reporting details of music played.
Phonographic Performance Limited (PPL) performs similar functions but acts on behalf of the record companies and the artists involved. Their licence covers the public performance of the recorded material via 78s, LPs, cassettes, and CDs. Although copyright in recordings expires after 50 years, the all-encompassing nature of the Federation PPL licence again offers affiliates a favourable cost structure and free of additional administrative effort such as reporting details of recordings used.

It should be noted that both these licences cover programmes given to society members. To comply precisely with the licences, any visitors to a society should be granted temporary membership. Most societies make a charge for this anyway, and it can easily be effected by means of a visitors' book and a cover note that entry signifies temporary membership.

Do these bodies enforce their responsibilities?
Certainly. Both organisations have regional offices and agents throughout the UK who are "on the lookout" for activities that infringe copyright legislation. Music publishers are known to look at music stands during concerts and, as a result, schools and churches have been sued. We know of an unaffiliated society that found itself on the wrong end of a retrospective demand for payment of an amount that was seven times the amount levied by FRMS for a similarly sized group. They have now affiliated!
Whilst both PRS and PPL are mainly concerned with commercial usage of recordings i.e. in pubs, clubs, discos, hotels, "music on hold", shops, etc., if any affiliate should receive worrying approaches or indeed actual demands for payment, they should immediately contact the Federation for assistance.

Do the licences cover other recordings e.g. from the radio or of live performances?
FRMS licences do not cover the use of recordings taken "off-air" e.g. Radio 3 live concerts, The Proms, etc, or of other live public performances e.g. the local operatic group or brass band. Copyright in these other recordings properly belongs to either the broadcaster or the performing group. Many local groups sell CDs of their performances and so, if you want to "play by the rules", it ought to be quite possible to get their permission for "public performance" at an RMS programme.
However, much very interesting music can be accessed this way and it would be a shame for RMS groups to be denied it for the short and occasional use usually involved. It is recommended that societies "come to an understanding" with recitalists who plan to use non-commercial material as to the responsibility for a possible technical breach of copyright. Obviously the ideal plan would be to exonerate the RMS from any liability, although it could be argued that they might be "aiding and abetting" the breach anyway. It is a very low risk situation and most societies "don't give it a second thought".
Recordings of commercially issued CDs, re-broadcast by the BBC, should, in all logic, be covered by our licences. Although record companies will not have benefited by this practice, it could be argued that individuals are just using a different means of capturing the original sound recording and limited use should be covered by a concept called "fair dealing". However, there is a copyright in the actual broadcast itself particularly relating to the presenters' introductions, and so it is probably best to keep such recordings for your own domestic use only and not to use them in RMS presentations.

Does our PRS licence cover live music performance?
No… the FRMS PRS licence only covers the use of sound recordings at recorded music recitals.
If you promote live music activities, you should check with your venue whether they already have an appropriate PRS licence. Most venues that have the facilities for live music such as theatres, churches, schools, municipal halls, community centres, etc are likely to have a PRS licence for live music; some venues may include cover in the hire charge, others may recover a cost on a individual event basis.

Our meeting venue offers us PRS cover. Is this okay?
Maybe! If your venue has a PRS licence it means that they have acquired what is called a "direct licence" and you should check what terms apply. Some venues will have an all-embracing licence that covers music of all types i.e. live and recorded, others may only have a licence for live music and others still may only have a licence to perform music in a particular room. If you can verify that your venue has a licence that covers the playing of recorded music in the room that you use, then you do not need the Federation PRS cover and you may apply for Associate Affiliation instead. But be aware that if you change venues, or use another one for a special occasion, then you will need the FRMS cover.

We meet in a church. Are the rules different?
Although the law gives no exemption for acts of worship, by convention the various regulatory agencies do not seek payment for music used in worship. But this is as far as it goes. Performance of any other form of music, whether live or recorded, requires a PRS and/or PPL licence. The church may in fact have acquired a "direct licence" that covers this activity and will include this within its hire charge or recover on a contribution basis. Do check the exact terms of occupation and hire. If you meet in a church hall, as opposed to the church itself, then you will certainly need to check out what you might be covered for within the hire charge. If in doubt on either of these instances, then you are advised to participate in the standard Federation licensing schemes.

What about the use of DVDs. Are we covered for PRS?
Although it was previously thought that video was covered by our PRS licence, in the course of some discussions with PRS, it transpired that our licence did NOT in fact cover "videograms", as they are called. This is because the terms of our licence authorise the public performance of the music content contained in "sound recordings", as defined by the Copyright, Designs, and Patents Act of 1988. On inspection of the licence, it was considered that DVDs were "sound recordings but with visual images". The PRS legal interpretation was that DVDs were "films, with classical musical soundtracks". However, and thankfully, after many persuasive exchanges with PRS, it has been agreed that for the purposes of the FRMS licence, "sound recordings" are now deemed to include videograms that include video cassettes and DVDs. So far so good.

So what about public performance of DVDs?
The "small print" on the DVD wrappers, together with the opening on-screen warnings, makes it clear that "public performance is strictly prohibited", or words to that effect. The problem for us is that there is no single organisation that issues licences for the public performance of music DVDs.
The PPL licence only covers traditional forms of recording i.e. LPs and CDs, and does not cover videograms. Video Performance Limited (VPL) will licence pop music videograms; FilmBank Distribution will licence "feature films", including music related ones e.g. The Pianist, if released by the organisations that they represent. No one looks after the type of videogram that our affiliates are usually interested in, i.e. opera, ballet, concerts and recitals, composer/artiste profiles, etc.

The Federation has discreetly contacted a number of DVD producers to enquire about permission for affiliates to indulge in "occasional" performances on DVD. Some of these producers are located on the continent. A self-imposed time limit for the producers to respond came to a conclusion mid August 2006. The wording of our approach makes it clear that non-response will now be taken as "tacit permission". On this basis we have "approval" from several of the major producers/distributors. As we go to press, affiliates are DEFINITELY okay from the PRS angle but are, subject to the above untested "permissions", exposed to the strict copyright terms for public performance of the videogram itself. If any affiliate should experience any difficulties, we can fully demonstrate that we have already made every effort to get a permanent and workable solution within the law and have extensive correspondence and analysis to which we can refer. Any such problem should immediately be referred to the Federation for assistance.

Whilst the Federation, at present, cannot give any firm assurances on this topic, the prospect of being taken to task is a very low risk situation indeed especially if affiliates do not mention in programmes or publicity which particular version is being shown. As mentioned above there are more than a dozen major producers/distributors of music DVDs with hundreds of minor ones, and it would be necessary for an individual DVD producer to take any action under civil law which would probably not be cost effective. Affiliates intending to continue with DVD programmes do so at their own discretion, and should simply be aware of the technical legal risk involved in showing videograms.

Is it legal to copy CDs?
Strictly no, but under a doctrine called "fair dealing", which is likely to be enshrined in law in the near future, individuals may transfer a limited number of recordings onto different media FOR THEIR OWN USE. It's when they do so for the benefit of friends that the copyright rules really get broken. With the advent of CD and DVD writers on most modern computers it has become all too easy to make copies. Lots of folk make these copies and if they are copied in one domestic environment and used in another domestic environment then nobody is the wiser although it is a strict breach of copyright. It would be down to an individual record company to take action under civil law.
If an individual receives a copied CD from someone else, then they would be party to a breach of copyright, and any subsequent use at an RMS presentation would involve an insignificant but nevertheless technical legal risk.

Our presenters often use "compilations" of their own CDs in their programmes. Is this legal?
As regards recorded music society use, we are protected in a number of ways. Firstly the recitalist who has transferred his recordings onto, say, cassette, CD, or mini-disc will have done so for his and the RMS's convenience only and it is still his own copy. This should be permissible under the "fair dealing" principle, therefore so far so good.
The "public performance" of the resultant copy comes under the same rules as playing the original recorded media. The Federation administered licence with PRS and PPL should cover affiliates for both the performance of the music and the playing of the sound recording, whether in the original retail version or the "convenience compilation". This should cover most of affiliates' recitals.

The future?
As we prepare this factsheet (January 2007), the initial results of an in-depth review of UK copyright law have been published. The Gowers Review was commissioned by the Chancellor, Gordon Brown, in December 2005 to evaluate the UK's intellectual property (IP) legislation and assess how IP rights are calculated, awarded and enforced.

One of the main recommendations is that artists' and sound recording copyright should remain at 50 years, a decision which has dismayed musicians and the recording industry alike. Among the other recommendations are a tougher policing of copyright infringement, especially online piracy, simplifying the intellectual property system and reforming copyright law to allow the use of content "in ways consistent with the digital age". The latter proposal would include the introduction of a "private copying" exception that would enable people to shift content they've purchased between different formats. This last recommendation would remove the anxieties of many affiliates in at least one of the areas discussed above, i.e. the use "convenience compilation CDs".

As usual the European Commission has a role to play in this issue and is expected to review its relevant directives on the topic in 2007/8. It may decide to suggest alternative measures!

Important Notice: We have prepared this Factsheet based on our current understanding of the issues as they affect affiliated societies. Information is given in all good faith but without prejudice or responsibility.

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