Mudcat Café message #1258123 The Mudcat Café TM
Thread #70681   Message #1258123
Posted By: GUEST,Hamish Birchall
27-Aug-04 - 08:44 AM
Thread Name: A little more news on Licensing
Subject: RE: A little more news on Licensing
This is a response to Richard P's message yesterday (26 August) which concerns the question of whether the performance of live music itself is licensable, and the implications of the 'entertainment facilities' provision.

I did not misquote Richard P. His posting of 11 August unambiguously states, under point 2: 'It is not illegal to make music under the Act'. On 13 August, I said, by way of reply, that he was wrong to make this 'sweeping claim'. I went on to point out that the Act does create circumstances where the performance of live music is a potential offence for the performer. This is not the case in every conceivable circumstance, but it is the case for many common performance scenarios. I set those out in my posting of 13 August and there is no need to restate them here.

Richard P is wrong to claim that '… clause 1 of the Act… makes it clear that licences are issued for premises and premises supervisors only.' Clause 1 does no such thing: what it does is list the licensable activities. These include 'the provision of regulated entertainment' (s.1(1)(c)). The entertainment schedule goes on to define this further, and specifically includes both the provision of a performance of live music, and the provision of facilities to enable people to make music for the purpose of being entertained (see Sch.1, paras 2 and 3 for the full definitions/descriptions).

In plain English Richard P is right that an instrument is not a premises – but that doesn't stop the Act rendering the provision of a musical instrument in many ordinary performance scenarios a potential criminal offence.

Richard P's misunderstanding arises to some extent from the term 'premises licence'. How can a licence for a premises also be a licence for an activity? The answer is: a premises licence is, in effect, a dual licence for the premises AND licensable activities. This one reason why DCMS has claimed, misleadingly, that 'the concept of an entertainment licence will entirely disappear'. The term has changed, but the concept remains.

A premises licence 'authorises the premises to be used for one or more licensable activities' (s.11). This means that a premises may be authorised to be used for the sale by retail of alcohol but the licensee may not have obtained authorisation on the premises licence to provide performances of live music. Providing live music could therefore be an offence in such a place. And, crucially, solo performers particularly may be open to prosecution under s.136(1)(a). In this case, his or her actions could not be 'performed by a non-musician', as Richard P claims. In a public venue not licensed for live music, if the performer had organised the gig and promoted it, the only way for that performer to avoid committing an offence would be not to play.

Note also that 'premises' is defined in the Act as 'any place', including 'a vehicle, vessel or moveable structure' (s.193). The licensing lawyers I speak to agree that, under the Act, buskers should therefore first check with their local authority whether the street, square or park in which they wish to busk is covered by a premises licence.

Licensing lawyers have also questioned the need for the 'entertainment facilities' provision. This was the case when it first appeared in the draft Licensing Bill. The paragraph was not inserted late in the day to close a loophole – it has been there from the start.

Unfortunately, the implications for sessions still stand (as explained in my 13 August posting).

I would urge Richard P to read the Act more closely, and to consult some good licensing lawyers, before leaping to any more conclusions.