In simple terms it excludes from licencing any background music, such as muzak in shops, which is not intended to be listened to by an audience in preference to other individual activities by that audience.

I see that you got there in the end Richard (P).

It is fair to say that your simple term explanation WAS the situtaion envisaged by the original drafters - who were very keen for some reason to ensure that such recorded background music should remain exempt. However, they were rather ignorant of any live music that could probably claim to be rather more worth protecting and exempt - by being considered incidental.

So rather late in the day - the exemption was logically extended to cover incidental live music and this was passed. However the drafter's ignorance of live music continues and it is not surprising that they could not really bring themselves to come up with some more practical application and example for what would be considered as incidental live music. The volume at which it played is a start but I can see little justification for this being a factor in the Act, for being considered as incidental.

And can you really see these officers rushing in to any 'place', like an office building and insisting that the MUZAK in a lift is covered by a Premises Licence, because it is too loud to be considered as incidental?

Rather than being rash in making assumptions or waiting for licensing officers to decide otherwise - it is rather up to us to now ensure that our local licensing committees consider sessions etc to be incidental. The guide for the exemption is in the words of the act. So from now on - where recorded music is exempt as incidental - so automatically is live music. All background music is now exempt - period.

Let these officers (who will accept that juke box music is incidental) make and prove the argument - if they want to make it - that non amplified sessions or a piano player etc, not designed for or needing an audience are not background and incidental live music under the words of the Act.

There is no need to introduce yet another word like 'obtrusive' for us to argue the definition of. Following the guidance and in a practical sense (if not a legal one) it is rather simple - if incidental (background) music, recorded or live, is considered too loud - it cannot then be incidental (background) music.

As to who decides the volume level? The licensing authority may wish to decide this but I would suggest they only have just cause to investigate, if genuine noise complaints are received, from the public outside the premises. If any customers inside complains - they can be asked to go elsewhere, as the volume you are prepared to talk over is largly a matter of personal taste.

I would not consider live session music on non amplified ever to be too loud to be considered as incidental. I may consider recorded music to be too loud for this, and if I did, I would go elswhere. If the Act has the (unintended) effect of lowering the general level background music, this will not be a bad thing.

That brings us to the Dave Bryant factor.