The Live Music Act received Royal Assent on 8 March and will come into force on 1 October 2012. The Act will remove the requirement for live music to be licensed in certain circumstances and where the criteria are met, existing conditions on Licences which relate solely to the provision of live music (as opposed to live and recorded music or only recorded music) will be of nil effect unless and until conditions are re-activated or imposed at a review hearing.

The DCMS are consulting on proposed changes to the Guidance under the Licensing Act to reflect the new exemptions for live music.

This is a technical consultation only i.e. to ensure that the Guidance is accurate, helpful and practical. It will not and cannot alter the substance of the legislation. However, the draft Guidance is useful in that it clearly sets out where live music will remain licensable as follows:

  • Where a performance of live music, whether amplified or unamplified, takes place at any time other than between 08.00 and 23.00 on any day i.e. live music on until midnight would be licensable, even if the other conditions were met;
  • Where a performance of amplified live music takes place at relevant licensed premises, or workplaces, in the presence of an audience of more than 200 people;
  • Where a performance of amplified live music takes place other than on premises licensed for on-sales of alcohol;
  • Where a performance of amplified live music takes place at relevant licensed premises at a time when those premises are not open for the purposes of on-sales of alcohol. Therefore, if a pub, restaurant, or hotel is open for breakfast at 8am, but is not authorised to sell alcohol until 10am, amplified live music between 8am and 10am would still require licensing; or
  • Where a licensing authority intentionally removes the effect of the deregulation when imposing a condition on a premises licence or certificate as a result of a licence review.

These clarifications essentially underline what the exemptions actually are and perhaps more importantly, what they are not. As reported in previous editions of our Review, the key change for licence-holders is that amplified live music will not need to be licensed in premises authorised for on- sales of alcohol for audiences of up to 200 persons between 8am and 11pm. This means that if you wish to hold live amplified music within these time-frames for small audiences, you will no longer need to apply for a Temporary Event Notice, or variation to your Premises Licence, so long as the entertainment will take place when you are open for the purposes of on-sales of alcohol.

There is a separate exemption for live unamplified music which takes place between 8am and 11pm, without a specification as to audience numbers and regardless of whether or not it takes place on alcohol-licensed premises. Therefore, premises that are not licensed at all, or are licensed only for late night refreshment, will be able to provide unamplified live music during these times with no requirement for a separate authorisation.

It is worth bearing in mind though, all playing of music in “public” (which for these purposes means audible by more than one person, even if those persons are all staff) requires copyright licences issued by PPL and/ or PRS as appropriate, whether they are amplified or unamplified (although live music will only require a PRS license).

The Live Music Act is undoubtedly good news for the onlicensed trade and will hopefully encourage more live music acts at grass roots level. It is a rare example of de-regulation for an industry that is increasingly regulated. However, the application of the exemptions may well be more difficult than it first seems. For example, the draft Guidance states that “a DJ who is merely playing tracks would not be a performance of live music, but might if he or she was performing a set which largely consisted of mixing recorded music to create new sounds”. It also notes the potential difficulty in determining whether existing licence conditions will be suspended, for example a condition stating “during Regulated Entertainment all doors and windows must remain closed” would still apply unless the only entertainment provided was live music between 08.00 and 23.00 to an audience of 200 or less.