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 previously lasted for 50 years. However on November 1st 2013 this was extended by EU Directive to 70 years. Unsurprisingly (!), this was not a simple change with all sorts of more complex nuances that are unlikely ever to have a practical effect on recorded music societies. For a more detailed view of the current situation (September 2014), please go to the final paragraphs of this factsheet.

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, 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 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. 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.

Copyright and the EU

In December 2005 the Gowers Review was commissioned by the then Chancellor, Gordon Brown, to evaluate the UK's intellectual property (IP) legislation and assess how IP rights are calculated, awarded and enforced.

As usual the European Commission had a role to play in this issue and following its own review of the relevant directives came up with a new one! Directive 2011/77/EU. This was primarily focussed on the copyright in sound recordings. The Directive was implemented into UK law on 1 November 2013 by the Copyright and Duration of Rights in Performances Regulations 2013.The Copyright Designs and Patents Act 1988 was further amended by the Copyright and Duration of Rights in Performance (Amendment) Regulations 2014 which came into force on 6 April 2014.

The length of the term of copyright is now harmonised across the European Union. The period of copyright protection for released sound recordings and performers` rights in sound recordings is extended from 50 to 70 years. The extended term applies to all sound recordings that were protected by copyright on 1st November 2013, and to any sound recordings made after that date. The Regulations do not have the effect of bringing back into copyright those sound recordings where copyright has expired.

The term of copyright protection begins at the time the recording is made or from the date it is published or from the date it is played in public or communicated to the public, whichever is the later of these dates.

If a sound recording is not published, played in public or communicated to the public, the length of copyright term remains at 50 years from the date it is recorded.

Additional measures in the Directive

The copyright in the music and the lyrics of a musical composition with words, such as opera, are distinct from each other and, if written by different people, will normally expire at different times depending on the date of the deaths of the composer and lyricist. The Directive provides that where the music and lyrics in such a musical composition are written specifically for each other, the term of copyright in each shall last until 70 years following the death of the last surviving of both (or all) of the creators (see revived copyright);

record producers must set aside 20% of all revenues from the sales of sound recordings for a fund for session artists;

if a record label is not commercially releasing a track that is over 50 years old, then the performers can request that the rights in the performance revert to them - a 'use it or lose it' clause;

a 'clean slate' provision prevents the producer from deducting advance payments from royalties after 50 years.

Revived Copyright

An example of where copyright will be revived by the new regulations is in the music for the opera Rusalka by the Czech composer Antonín Dvorák. The libretto was written by Jaroslav Kvapil. Dvorák died in 1904; therefore the copyright in the music expired in the UK at the end of 1974 (i.e. life of the author plus 70 years). Kvapil on the other hand lived until 1950, so the copyright in the libretto will not expire in the UK until the end of 2020. In this case, copyright in the music will be revived and will expire at the end of 2020, i.e. at the same time as the copyright in the words.
The owner of any revived copyright will be the person who was the owner of the copyright immediately before it expired except where that person has died, in which case ownership of the copyright will revert to the author of the work or his beneficiaries.
Where copyright has been revived the copyright owner will enjoy the same exclusive rights as they would in any new work with a few 'technical' exceptions.

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.


Original text 2007
Revised September 2014

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