These are the words of the Act (as regards the 'incidental exemption).

Schedule 1
PROVISION OF REGULATED ENTERTAINMENT
Part 2
EXEMPTIONS

7 The provision of entertainment consisting of the performance of live music or the playing of recorded music is not to regarded as the provision of regulated entertainment for the purpose of this Act to the extent that it is incidental to some other activity which is not itself-

(a) a description of entertainment falling within paragraph 2, or
(b) the provision of entertainment facilities.

This is the guidance.

The Statutory Guidance

Incidental music

5.18

The incidental performance of live music and incidental playing of recorded music may not be regarded as the provision of regulated entertainment activities under the 2003 Act in certain circumstances. This is where they are incidental another activity which is itself not entertainment or the provision of entertainment facilities. This exemption does not extend to the provision of other forms of regulated entertainment. Whether or not music of this kind is "incidental" to other activities is expected to be judged on a case by case basis and there is no definition in the 2003 Act. It will ultimately be for the courts to decide whether music is "incidental" in the individual circumstances of any case. In the first instance, the operator of the premises concerned must decide whether or not he needs a premises licence.

One factor that is expected to be relevant is "volume". Common sense dictates that live or recorded music played at volumes which predominate over other activities at a venue could rarely be regarded as incidental to those activities. So, for example, a jukebox played in a public house at moderate levels would normally be regarded as incidental to the other activities there, but one played at high volume would not benefit from this exemption.

Stand-up comedy is not regulated entertainment and musical accompaniment incidental to the main performance would not make it a licensable activity. But there are likely to be some circumstances which occupy a greyer area. In case of doubt, operators should seek the advice of the licensing authority. particularly with regard to their policy on enforcement.