The car tyre and exhaust repair firm Kwik-Fit are currently embroiled in a court case with the Performing Rights Society (PRS) concerning the playing of music at their repair centres. Due to the employees of Kwik-Fit listening to their personal radios while they work on customers' cars the PRS, which is an organisation that collects royalties for music publishers and songwriters, is claiming some £200,000 in fees it feels that Kwik-Fit should have paid for a licence to play music on their premises. The claim is based on the ability of Kwik-Fit patrons being able to hear the music coming from the radios.

While such legal action may seem frivolous and without merit at first glance, the PRS in fact are on a sound legal footing as regards their claim against Kwik-Fit in copyright law. Section 19(1) of the Copyright, Designs and Patents Act 1988 restricts the performance of a copyrighted musical work in public, and sections 19(2) and 19(4), along with cases such as Australasian Performing Right Association Ltd v Tolbrush Pty Ltd [1986, Supreme Court of Queensland, Australia], make it clear that the playing of a radio in public constitutes a 'performance'.

For their claim to be successful however, the PRS will also have to demonstrate that the performance can be said to be in public. This is an indefinite proposition but nonetheless the PRS can find some support for their claim in case law. In the case of Performing Right Society v Camelo [1936] the playing of a radio in a private room adjoining a restaurant was held to be a public performance as the music could be heard within the restaurant. This case would appear to put forward the view that if a performance can be heard by the public, it is a 'public performance'.

Whether the music can be heard by the public in Kwik-Fit's premises is exactly the question in hand in the PRS claim. At an early hearing of the case the presiding judge, Lord Emslie, enquired as to whether it would be a public performance given that if four different radios are being listened to by employees in different work bays it would amount to 'a cacophony of noise driving members of the public away', particularly when coupled with the noise generated by the work that the employees would be undertaking.

Kwik-Fit have claimed not to be responsible for any copyright infringement in any case as they have in fact banned the playing of radios by their employees at work. Despite this, the PRS claim to have found that of Kwik-Fit's 600 operational units around 51% could be found having radios playing, which could be argued to demonstrate that Kwik-Fit are somewhat lax in enforcing their rule. Though it is normally the individual breaking the copyright that is liable for any claim, an employer may be found vicariously liable if the infringement is done in the course of an employees' employment.

Thereafter it may be the case that if the PRS can prove that music coming from Kwik-Fit employees' radios is audible to the public their action could be successful. The next stage of the case will be a two-day procedural hearing to deal with preliminary legal points, the date for which has yet to be set. Please see our future ebulletins for an update on this case.