Mudcat Café message #1246587 The Mudcat Café TM
Thread #70681   Message #1246587
Posted By: GUEST,Hamish Birchall
13-Aug-04 - 04:39 AM
Thread Name: A little more news on Licensing
Subject: RE: A little more news on Licensing
Richard P is wrong again to make the sweeping claim that 'It is not illegal to make music under the Act'.

Read Sch.1 paras 1(1)(a) and 2(a) with para 2(1)(e) of the Act and consider a solo musician, or bandleader, organising and performing their own gigs. If he/she performs with any intention to entertain 'to any extent for members of the public or a section of the public', they are indeed open to criminal prosecution - unless the venue is appropriately licensed. There is a 'due diligence' defence if they can prove they were incorrectly advised beforehand that the venue was licensed for the performance. But broadly, music-making is a potential offence unless the organising performer has a) no intention to entertain, and/or b) no audience or even spectators are present, or c) the event is totally private and not-for-profit.

Richard P could argue that under s.136(2)(d) of the Act a person 'does not commit an offence... if his only involvement in the provision of the entertainment is that he ... performs live music...'. But that does not protect performers who organise their own gigs. S.136 only protects 'hired hands' or other musicians who might sit-in.

And what about sessions and the 'incidental' exemption? This exemption is void if entertainment facilities are provided (Sch.1, para 7(b)). It is clear from the entertainment facilities description (Sch.1, para 3) that, in the context of a typical pub session, musical instruments are entertainment facilities. Musicians bring their instruments to sessions, and venues often provide instruments or other facilities enabling persons to make music for the purpose of being entertained. The Act does not discriminate between a venue or a performer as a potential provider of entertainment facilities. It is also clear that making premises available can count as the provision of entertainment facilities. In the Act's definition of music (Sch.1, para 18), unaccompanied singing is also covered.

Strictly adhering to the words of the Act renders many sessions illegal unless the venue is licensed. Those performers also responsible for organising such events would also be open to prosecution.