Copyright is still a battle of wills
Although it takes the form of a licence, copyright in music still presents the trade with a thorny problem.
It is not a simple licence with a fixed fee, as for alcohol and entertainment. And it is not a direct permission laid down by Government. It is a payment scheme administered by agencies on behalf of the music industry, and as such is open to individual interpretation.
While it is right for the trade's negotiators to claim "victory" in their struggle with Phonographic Performance (PPL) in the High Court recently, this is not the end of the story, but the beginning. There is still a lot of work to do on the whole question of payment for recorded background music.
It is a long-running saga. Licensees have always resented paying the Performing Right Society (PRS) what they see as heavy fees for playing incidental music in their pubs. In spite of a positive trade campaign by the PRS in recent years, it has yet to win over the majority of pub licensees, in my experience.
PPL is a different matter. It represents, in the main, the recording industry. Its more aggressive approach has backfired and it may well be that the Copyright Tribunal may bear this in mind, although as the body that rules on disputes between music users and the copyright organisations it will give judgment entirely on a legal basis and on the facts as presented.
There is a fine dividing line between paying authors, arrangers and producers what is due to them and seeking to "milk" a captive audience, who cannot afford to be without some form of musical entertainment. This is why the Copyright Tribunal holds the ring, not only in the licensed trade but in other consumer industries as well.
The complicated tariffs and agreements have come about as the result of protracted negotiation over many years. When I entered the licensed trade many years ago, I was amazed at how much time and effort the then Brewers' Society put into copyright negotiations and manoeuvring. But the sums involved for the licensed trade as a whole are huge, and the consequent savings when a judgment goes the way of the industry are significant.
Let us hope that when the next round gets under way, the fees are able to be kept at a reasonable level in the difficult financial time for the sector.
Q&A
Presence of DPS
Q. Can you tell me whether it is true, as our local police licensing officer says, that a designated premises supervisor (DPS) does not have to be on the premises ever, if he has just been named to get the licence?
A. This is an interesting point in practice. Because of the late addition of this concept in the Licensing Act, references to a DPS are scarce. The only requirement is to have a DPS, who must be named on the actual premises licence. But after that, there are no specific regulations covering his or her actions.
What there is, however, is the right for a licensing committee
to remove a DPS on review of the licence. This might indeed happen in circumstances where the police have shown that the non-attendance of the DPS at the premises has led to a breakdown of order there, with lax supervision of the sale of alcohol.
If, however, the DPS has responded to any police requests or has intervened to head off trouble, even though he works at the head office, there seems to be no grounds on which he could be removed simply because he is employed elsewhere than at the licensed premises.
So it is true that a DPS does not need to be based at the named pub, or even make regular visits. But he must retain responsibility for the conduct of the premises and can be removed if he does not properly fulfil that role.
Glasses outside
Q. My friend and I both own busy town-centre pubs. He says that if customers stand outside not obstructing anyone and placing their glasses on the window sill, he is not breaking any law and they cannot be forced to drink inside. I have my doubts. I would appreciate your views.
A. This issue is complicated by the fact that different authorities take different views on the matter — and so do the police, depending on the circumstances. In truth, there is legally nothing wrong in persons standing outside the premises, because both your pubs will be entitled to sell alcohol for consumption both on and off the premises. Consumption of alcohol itself is not a licensable activity, although some licensing authorities think it is.
The problems come, as you recognise, from complaints either about obstruction of the highway or about noise. This has of course been highlighted by the smoking ban, because it is more likely that some customers will choose to stand outside the pub more than they used to, in order not to break the smoking laws.
Some premises licences now have conditions prohibiting consumption of alcohol in certain areas, or restricting the places where customers may go. But in general, there is no power for licensing authorities or the police actually to ban external consumption of alcohol unless there is a local designation order on street drinking, which they can enforce. Even then, it would not apply to areas reserved for pub customers' use, or licensed to the pub owner by the local authority for tables and chairs.
Staff smoking
Q. I am steward of a village social club. My wife has told me about an article that said staff should not smoke in the same shelter/area as customers or club members. Our staff use the members' shelter during paid breaks. Is this illegal?
A. While this may sometimes be imposed as a rule of employment, there is no specific law or regulation that could be used to enforce such a ban.
The requirement is that persons should not smoke in an enclosed place or the workplace itself. So both members and staff have to find somewhere outside the club premises to indulge their habit. As long as the shelter complies with the legal requirements it can be used for smoking by any person. No segregation is required.
