John King - Live Music Act Guidance: The Devil In The Detail
26 Sep 2012
Entertainment licensing has an inglorious history. In 1649, to evade a ban on playhouses, comedian Robert Cox ‘wrote drolls or farces which were acted under the disguise of rope-dancing’. In other words, he got round the law by performing stand-up on a tightrope.
The last Government’s (and now this Government’s) 21st century licensing regime will seem just as absurd to future historians: Robert Cox would not now need a licence for his stand-up comedy, but he would need a licence for his tightrope. Both the 17th and 21st century licensing regimes fell into a similar trap by attempting to differentiate between types of entertainment and both licensing regimes attempted to offer an exemption to one entertainment category, but not another. And to do that you need workable definitions of drama, dance and music.
The Licensing Act 2003 created three categories of music: live music, recorded music, and entertainment similar to live and recorded music. The Act itself offers little explanation of the first two categories, and no hint of what could be included in the last, which has led to local authorities enforcing widely differing interpretations. Karaoke, for example, one would assume falls into the ‘entertainment similar to’ category. Hillingdon Council would agree with you, but not Breckland or Newport Councils, who consider karaoke to be live music, or East Herts, who class karaoke as live and recorded music.
This matters because the purpose of these categories is surely to promote the objectives of the Licensing Act, by guiding the accurate targeting of licence conditions. Licensing authorities like to use the Licensing Act for pre-emptive noise-abatement enforcement, but acting on vague guidance, all too often place restrictions on live music as a result of complaints about recorded music or karaoke.
The Live Music Act should have afforded a good opportunity to sort this out once and for all. The Act, however, is only as good as it’s guidance, and DCMS are proposing new definitions of live and recorded music that do not promote the objectives of the licensing act or the original intention of the Live Music Act.
The proposed guidance states that DJs may be classed as live music if they are ‘performing a set which largely consisted of mixing recorded music to create new sounds’. From an artistic point of view, that may be the case. But from a licensing point of view, how on earth are licensing officers going to decide what is a ‘new sound’ and apply the Live Music Act licensing exemptions to a DJ. DCMS have an unedifying answer to this too:’ In the event of a dispute about whether a performance is live music or not, it will ultimately be for the courts to decide in the individual circumstances of any case’.
This rather silly suggestion would only occur after a bizarre sequence of events: a premises without permission for recorded music (and a huge majority of pubs and clubs already have this permission), puts on a DJ event (probably without dancing) hoping to benefit from the Live Music Act exemption (which finishes at 11:00pm). A licensing officer determines that the DJ isn’t being sufficiently creative and is actually playing recorded music, and then prosecutes. Well, this isn’t going to happen and it has no place in the guidance to the Live Music Act.
In any case, the Court may well say that the Licensing Act definition of recorded music is ‘any playing of recorded music’. It’s difficult to see how a DJ (or karaoke or a singer performing to backing tracks) could escape this definition.
And, if this definition is kicking around in the Licensing Act, then conversely if a DJ performing in a club that does not have permission for live music, and mixes two existing recordings together to create a ‘new sound’ after 11:00pm, is this DJ performing live music and therefore breaking the law? The DJ (and the premises) may be breaking the law anyway. Using two pieces of recorded music to create a new work may well be in breach of the Copyright, Design and Patents Act 1992.
Similarly, the guidance struggles to cope with categorising live music performed (or mimed) to backing tracks, and stays off the subject of karaoke altogether.
The proposed guidance states that music performed to a backing track, providing the creative contribution of the live element is ‘substantial and continual’ can be classed as live music. Again, artistically this may be the case, but licensing officials cannot be expected to judge (in many cases prior to an event taking place) what is ‘creative’ or ‘substantial’. This definition is absurd and has nothing to do with promoting the licensing objectives.
Musicians have been squabbling about the definitions of what is or is not live for decades. The MU has long argued that live is live and recorded is recorded. There have been occasional trade description court cases which reinforce this definition.
During the passage of the Live Music Act through parliament, some MPs and Peers voted for the Act because it was assumed at the time that the Act did not exempt backing tracks from licensing.
Actually, the guidance to the Live Music Act doesn’t need to categorise backing tracks as live music in order to exempt this entertainment from licensing. The Live Music Act already exempts ‘entertainment similar to live music’ from licensing (subject to the restrictions of the Act).
In muddying the definition of recorded music, DCMS will make some bona fide licence conditions applied to recorded music (such as noise limiters installed specifically to reduce noise leakage of frequencies below 100Hz) difficult to enforce if an act using backing tracks which produce the same level of low frequency as recorded music is exempt from licence conditions.
As there is no proposal either here, or in the wider entertainment licensing consultation, to scrap the existing categories of regulated entertainment, then the Government should at the very least make sure the definitions work correctly and are understood by licensing authorities, licensed premises, and performers.
It is more logical to reinforce the three Licensing Act definitions of live music, and to classify performances including both live and recorded music as ‘entertainment similar to’. This category would qualify for the licensing exemptions of the Live Music Act, but retain licence conditions placed on recorded music.
Robert Cox would be pleased to learn that the Live Music Act 2012 removes the requirement to licence the provision of a tightrope. Or maybe not. Although the Live Music Act removes licence conditions for live music, DCMS is proposing that ‘under certain circumstances’ licence conditions can be re-applied in the form of conditions placed on the provision of entertainment facilities. These conditions may include restrictions on the frequency and regularity of tightrope-walking comedians, the number of tightrope-walking comedians permitted to perform at any one time, the days of the week or months of the year that tightrope-walking comedians can perform. Or even a requirement for tightrope-walking comedians to submit a Form 696.