Dear Greg

You have swallowed the Minister's shit.

I am working on the refutation of the usual rubbish from the DCMS, line by liine, with quotes and reasons.

About Happy Birthday, and a couple of other common ministerial errors, the new law is as follows: -

(i)        The Minister says one will not have to have a licence for a band to play at a private function, unless the function is thrown open to the public or entry is charged. He is wrong. If the wedding reception is at a "qualifying club" (even if entry is restricted to some members and their guests only) Schedule 1 para 1(2)(b) catches it. But it is much worse than that. Schedule 1 para 1(2)(c) also catches it if the "entertainment" is provided "for consideration and with a view to profit". "Entertainment" is defined in Para 2(1) as including any performance of live music in the presence of an audience". The words "for consideration" are given an artificial meaning by Para 1(4). The relevant parts for the purposes of this evaluation are that entertainment is deemed to be provided "for consideration" if and only if (a) any charge is made by a person concerned in the organisation…of that entertainment and (b) that charge is paid by some of the persons for whom the entertainment is provided. I comment that paragraph (a) plainly includes a bandleader, for by definition a bandleader organises a musical performance. Further the host, who will have paid the charge made by the bandleader, will be present and one of those entertained.

(ii)        The minister says that singing "Happy Birthday" in a restaurant will not be licensable. He is wrong. Plainly it is a performance of live music. Plainly it is in the presence of an audience, for by Para 2(1) an "audience" includes any spectators. When "Happy Birthday" is sung, the person to whom it is sung is an audience, and the rest of those present, even if not part of the same party, are spectators. In a restaurant or pub, the public or a section of the public will be present, and the singers know that and know that those others will be listening and amused. Therefore the entertainment is provided "to any extent for members of the public or a section of the public" (Para 1(2)(a)), and the purposes "include the purpose of entertaining that audience" (Para 2(1), at end). Since restaurateurs know this will happen they cannot be heard to say that they do not make the premises available for this purpose. The result, as the Minister says, may be "inconceivable", but it is what the words of the Bill say.

(iii)        The minister says that the testing of musical equipment in shops will not be licensable. He is wrong. The shop is open to the public. In most cases others will be present, and if the minister goes to music shops he will see that those testing equipment frequently if not always to a greater or lesser extent play to that audience. The rest of that argument follows as in para (iv) above. But further, the shop allows the equipment and its premises to be used for that testing. That takes us to Para 3, not Para 2. Under Para 2 "entertainment" includes "making music", and this is true whether or not an audience of others is present or is to be entertained. Thus the shop, in the words of Para 3 provides "facilities (the shop and the guitar and if at all amplifier, etc) for enabling persons to take part in [making music]". The rest of Para 3 imposes a condition for the making available of facilities to be licensable. That condition is that those taking part do so "for …purposes which include the purpose of being entertained". That is to say what is weighed is whether the players entertain themselves rather than others. First, those who play an instrument are entertained when doing so. It is why one does it. Second, the word "entertainment" must be read in the same sense throughout the paragraph (R-v- Bloxham, (1982)). "Entertainment" in context is defined to include "making music" and "being entertained" must therefore include making music. So if the intentions of the player include the intention to make music, the shop proprietor is caught. The Minister may well say that no rational person would expect that. I agree, but the effect of the drafting does indeed appear to be that irrational.