Copyright

Many licensees get away with breaching a creator's copyright without even realising they are doing it - but there are some areas where this could end up costing your business dear.

Technology has made it easier than ever for written words, images and sounds to be reproduced, edited and manipulated. However, this also makes it much easier for businesses to break the copyright laws. By far the most common way in which pubs run into problems in this area is in their use of music, and this feature aims to offer both guidance and sources of further information in this area. However, it is also possible for pubs to leave themselves open to potential problems by breaching copyright in printed material such as menus, posters, and tickets. What is copyright?​

Copyright is the way creative people such as writers, artists, photographers and musicians get paid for their work. Since the invention of the first means of mass reproduction, the printing press, it has proven practically impossible to prevent popular works being reproduced.

For example, there were shorthand writers in the audience for performances of Shakespeare's plays, copying down the lines and distributing printed texts as soon as possible afterwards - which is one of the reasons those works have survived and plays by less popular writers have been lost.

Copyright law has evolved to ensure that people have a legal right to some control over the way their creative work is used, and to share in the proceeds when it is used commercially.

In the pub context, the most important areas of control give the copyright owner the right to authorise anyone to:

• copy the work
• issue copies to the public
• perform or play the work in public.

To put this in a practical context, try and decide which of the following are breach of copyright:

• a ticket or poster for a 60s disco with a picture of the Beatles on it
• a photocopy of a newspaper review of a meal at your pub, reproduced either on the menu of framed on the wall
• the photocopied logo of a beer brand used to publicise a special offer or promotion
• pictures, photos, quotations, or song lyrics used as questions in a pub quiz
• images of cartoon characters painted on the walls of children's play areas and equipment.

The answer, predictably, is that all of the above are probably in breach of copyright. None of which is meant to suggest that there are teams of lawyers scouring the pubs of Britain looking for publicans to prosecute.

Copyright is an area where technology tends to be a leap or two ahead of the law, and advances in photocopying and printing technology, and the ease with which computers make it easy to capture and reproduce images, means that breach of copyright is widespread.

If you are going to use copyrighted words and images, you should at least be aware of the fact you may be breaking the law, even if, for the most part, there is a minimal chance of the creator of the work, or his lawyers, finding out.

Music​ The problem of music copyright in pubs is complex because the use of music normally requires at least two, and sometimes more licences, to be fully covered.

Many publicans still believe that their Public Entertainment Licence (PEL) covers everything. In fact, the PEL only covers an actual live performance, and not the right to use copyrighted music as part of that performance.

It is very difficult to get away with not paying copyright fees, but it is possible if you compose and record your own music - an unlikely scenario.

To cover music copyright, you are likely to need a licence from both of the following:

• Performing Right Society (PRS): The PRS fee goes to composers and copyright owners. The fee depends on the type of music on offer - recorded, broadcast or live.
• Phonographic Performance Ltd (PPL): This payment for recorded music goes to record companies and recording artists. Again, there is a variety of different fees, based on the size of your pub and the way the music is used.

Occasions when you will need a PPL licence include:

• Background music: Either via CDs, tapes, radio, television or records.
• Juke boxes - and similar devices used to provide background music: If you rent a juke box or similar system, the supplier may already have a PPL licence which covers you. If in doubt, check.
• Pop quizzes, music quizzes and any general quiz involving some musical content: There is a fee per quiz, and you should also ensure your PRS licence covers rerecording music for quizzes.
• Functions: Even if you are not directly involved in the organisation, wherever possible PPL licences the owner/lessee of the premises.
• DJs: Licences issued to mobile DJs are designed to cover occasional events in church halls, etc, so do not cover regular events in pubs. The publican must also obtain a PPL licence.
• Karaoke: Check with the PPL which type of licence you need, and also beware of counterfeit karaoke disks currently doing the rounds, which could lead to heavy fines if you are found to be using them.

Trade marks and passing off​

Along with music, passing off is one other area related to copyright where publicans are regularly prosecuted. Depending which local trading standards office you believe, it is possible that as many as one in every 12 measures of spirits sold in UK pubs is a breach of copyright, in the sense that it is a cheap alternative trying to pass itself off as Smirnoff, Gordon's or a similar well-known brand.

The names, formulas and brand images of such products are legally registered and fiercely protected.

Trading standards officers are now routinely armed with special dip tests, developed by the brand owners, which allow them to discover if the contents of a bottle correspond to the brand on the label.

The testing kits contain a variety of plastic sticks, each one for testing a different brand.

When a stick designed to test Gordon's gin is dipped in the real brand it changes from green to yellow, but if it is dipped in a cheap substitute it turns blue. The results of the chemical tests are not enough for trading standards officers to prosecute licensees, but they do mean they can take samples away with them for further testing.

The true extent of the practice is hard to gauge, and while there are no doubt some publicans who have been tempted to unknowingly buy counterfeit brands from a source offering a cheap deal, it would be naive to think that there are not also a considerable number who are knowingly ripping off both their customers and the brand owners.

The distinctive name and trademark of a brand is owned in a similar way that a work can be copyrighted, and is illegal to attempt to sell another product - such as cheaper spirit - with the intention of making the customer believe it is the real thing.

Where a distinctive product is not trademarked - increasingly unusual in today's brand culture - it still may be protected by using the law of passing off, which is designed to protect the goodwill of a brand or business.

Further information​

Trading Standards​ - via your local authority PRS:​New licence hotline 08000 684828General queries:​ 0845 3093090PPL:​Licensing team 020 7534 1010