In the recent case of Phonographic Performance Ltd v Abimbola Balgun t/a Mama Africa [2018] EWHC 1327 (Ch) the High Court refused a restaurant owner (the “Owner”) permission to appeal a summary judgment granted against him for copyright infringement which occurred when DJs played music at private parties in his restaurant. The Owner was not in possession of the relevant licences from the collecting societies (Performing Rights Society Ltd (“PRS”) and Phonographic Performance Ltd (“PPL”)). The granting of such licences constitutes authorisation by the artist to perform their music and lyrics and to play their sound recordings in public without the need for further consent.

Legal Basis

Under the Copyright Designs and Patents Act 1998 ("CDPA") the following acts, by way of an example, constitute primary infringement, if performed without the copyright owner’s consent:

  • copying the work (section 16(1));
  • communicating the work to the public (section 16(1)); and
  • authorising another to do any of the above acts (section 16(2)).

Communication to the “public” is construed broadly and case law suggests that only domestic or family circles will be deemed not to constitute a “public” gathering.

Factual analysis

The Owner had argued that the act of booking DJs to play at his premises did not constitute copyright infringement and that he had no control over the specific music the DJs chose to play. The Judge held, however, the infringement arose from the music being played in public without the necessary consent and whether the owner had an input in selecting the songs was irrelevant; he was responsible for booking DJs to perform in public and absent possession of the relevant licences had infringed copyright under section 16(2) of the CDPA.

Conclusions

This case re-emphasises that the playing of recorded music in any business premises for employees or customers is lawful only if the relevant licences are obtained.

As of 28 February 2018 the PRS and PPL have formed a joint venture and going forward businesses playing music in public can obtain a single licence named “TheMusicLicence”; potentially making compliance more straightforward and bringing an end to the requirement to obtain separate music licences from PRS and PPL.