PELs UK Music needs your HELP

Subject: RE: PELs UK Music needs your HELP
From: GUEST,Mike
Date: 17 Nov 02 - 12:01 PM

How can we help defeat this?

Subject: RE: PELs UK Music needs your HELP
From: The Shambles
Date: 17 Nov 02 - 11:18 AM

PEL threads, links to all of them

Subject: RE: PELs UK Music needs your HELP
From: The Shambles
Date: 17 Nov 02 - 11:07 AM

To sum up - What all this 'gibberish' means is that it will just about be legal to make live music (or dance) in one's own private home.

As long, of course as you do not make a charge, if you do, then even that will be illegal................

Subject: RE: PELs UK Music needs your HELP
From: The Shambles
Date: 17 Nov 02 - 04:57 AM

Recorded music is legal without being licensed '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'.

In other words, I think pub jukeboxes would be exempt, provided they weren't next to a dance floor (but how do you define a dance floor???)

As the Government claim the issue is one of noise, how can pre-recorded music, that is incidental etc; not be a noise risk but all LIVE music in pubs (especially non amplified music), which is incidental etc; is a noise risk and presenting a problem that can only be dealt with by an additional 'entertainment' licencing requirement?

This is an anomally under the current legislation that could and should have been addresed in any 'reform'.

Subject: RE: PELs UK Music needs your HELP
From: The Shambles
Date: 16 Nov 02 - 04:15 PM

This from Hamish Birchall.

Yesterday the government published the Licensing Bill which, if enacted, would criminalise the provision of most live music in England and Wales, unless first licensed.

As predicted, broadcast entertainment on satellite or terrestrial tv is exempt.

The proposals represent the most significant increase in live music licensing for over 100 years. According to Culture Minister Kim Howells, this is necessary because 'one musician with modern amplification can make more noise than three without'. But since most noise complaints are nothing to do with music (acoustic or amplified), and even one unamplified performer would become illegal unless licensed, this rationale doesn't quite hang together. Anyway here is the link to the Bill:

http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldbills/001/03001.107-111.html#J1s1

Schedule 1, 'Provision of Regulated Entertainment', lists and defines what constitutes licensable live music and much more besides. Temporary permissions are covered in Part 5.

Premises licences, which include the option for licensable entertainments, are dealt with in Part 3.

No fees have been published yet, but guidance notes available on the DCMS website repeat the estimates contained in the licensing White Paper of April 2000.

Neither the extensive media coverage or Parliamentary support for reform has influenced the small clique of senior civil servants and Ministers responsible for this legislation.

Both the Musicians' Union and the Arts Council argued forcibly against the huge increase in licensing control, and jointly submitted amendments to the Department for Culture, Media and Sport (DCMS) in the recent consultation on the draft legislation. But the DCMS rejected them. In that respect lobbying has failed.

It may yet succeed, however, if sympathetic Lords support these amendments (the Bill is going first to the House of Lords). All my efforts, those of the Arts Council working party, and those of supporting organisations, will now be focussed on this.

In practical terms, this is what the Licensing Bill proposes for live music:

Pubs, bars, restaurants etc
110,000 licensed premises lose their automatic right to host one or two live musicians.
A form of this licensing exemption can be traced back to 1899.

Regular performance by even one musician, professional or amateur, amplified or unamplified, to be illegal without licensing permission.

Permission requires approval by police, fire service, environmental health dept, and local residents.

Local authority grants authorisation as part of 'premises licence' and may impose 'necessary' conditions (for public safety, crime and disorder, prevention of nuisance, and protection of children from harm).

If granted, the permission lasts for lifetime of business but may be revoked if noise/crime and disorder problems.

Licence fees to be standardised (at lower levels than now) and set centrally by Secretary of State.

Fee to be no different if licensable entertainment provided.

If live music not authorised, live music to be illegal (save spontaneous renditions of Happy Birthday etc)

Licence terms may be varied later if live music not chosen at outset.

Variation process essentially the same as initial application (see above). A fee will be chargeable.

Where live music not allowed under terms of premises licence, there is an option for up to 5 temporary permissions in a year, granted by a simple notification process (for a fee) provided under 500 people attend.

Private functions
The distinction between public and private events is blurred. Until now most private gigs have been exempt from public entertainment licensing. Most gigs on public land have been exempt. This would no longer be the case. Many, if not most, performances in this context would become illegal unless licensed, either via the premises licence, a club premises certificate, or a temporary event notice.

The wording of the Bill suggests that if a musician is hired to perform at a private event, this alone is sufficient to trigger the licensing requirement (this was hinted at in letters from Howells to MPs: 'it is clear that if a performer is paid, then the performance is public'.)

Any hitherto private performance 'with a view to raising money for charity' to become illegal unless licensed.

Live music in private clubs no longer exempt.

Churches
All public concerts in churches to become illegal unless licensed.

This provision extends legislation that currently applies only in London to the rest of England and Wales. This is very strange, because the London legislation dates from 1963, while the outside London legislation dates from 1982.

Music 'for the purposes of, or for purposes incidental to a religious meeting or service' is exempt.

New concept of 'entertainment facilities' as licensing criterion.
This is another strange provision. It seems that providing 'facilities for enabling persons to take part in entertainment', such as making music and/or dancing, is now to be illegal unless licensed.

It is a confusing part of the Bill, but my reading of this is that recording studios, rehearsal studios, or practice rooms may be caught. It might also include musical instruments, record decks, microphones, amplifiers, PAs etc etc. I am seeking clarification from licensing lawyers on this one.

Bandwagons exempt!
Curiouser and curiouser: live music performed in, or presumably on, moving vehicles is exempt!

Recorded music - limited exemption
Recorded music is legal without being licensed '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'.

In other words, I think pub jukeboxes would be exempt, provided they weren't next to a dance floor (but how do you define a dance floor???)

If you can find time to read the legislation, particularly Schedule 1, I would be very grateful for your comments.

Any musician lawyers out there: your input could be particularly valuable.

Subject: RE: PELs UK Music needs your HELP
From: McGrath of Harlow
Date: 16 Nov 02 - 01:33 PM

Here is that Guardian story Sheila Mellor was mentioning - Pub revolution 'will cut trouble' - round-the-clock licences will enrich lives, say ministers, but musicians fear reforms will jeopardise jazz and folk in hundreds of clubs:

Members of the Musicians' Union argue that 111,000 entertainers will be drawn into the system for the first time by the bill, jeopardising jazz and folk in hundreds of pubs and clubs, while there will be no controls on big-screen TV.

At the bill's launch in the basement of a Westminster pub, Kim Howells, the minister in charge, was accused of turning his dislike of folk music ("my idea of hell," he once said) into a snobbish vendetta against traditional music.

Subject: RE: PELs UK Music needs your HELP
From: The Shambles
Date: 16 Nov 02 - 10:50 AM

Licensing reform and live music
A response to DCMS launch of the Licensing Bill
Hamish Birchall
Musicians' Union adviser - public entertainment licensing reform


The broad aims of the Licensing Bill are to be welcomed, of course. Deregulation of opening times is likely to reduce binge-drinking, and alcohol-related crime and disorder. However, if all the provisions of this otherwise liberalising Bill were enacted, this would represent the biggest increase in licensing control of live music for over 100 years:

110,000 on-licensed premises in England and Wales would lose their automatic right to allow one or two musicians to work. A form of this limited exemption from licensing control dates back to at least 1899.
Churches outside London would lose their licensing exemption for public concerts.

Thousands of private events, hitherto exempt, become licensable if 'for consideration and with a view to profit'.

The same applies to any private performance raising money for charity.

A new licensing criterion is introduced: the provision of 'entertainment facilities'. This could mean professional rehearsal studios, broadasting studios etc will be illegal unless first licensed.

Musicians could be guilty of a criminal offence if they don't check first that premises hold the appropriate authorisation for their performance.

Likewise someone organising a karaoke night in a pub.

Buskers similarly potential criminals - unless they perform under a licensing authorisation.

Church bell ringing could be licensable.

But... broadcast entertainment on satellite or terrestrial tv, or radio, is to be exempt from licensing under this Bill.

The licensing rationale, where live music is concerned, is essentially to prevent overcrowding and noise nuisance. The government claims their reforms will usher in a licensing regime fit for the 21st century. But surely 21st century planning, safety, noise and crime and disorder legislation can deal effectively with most of the problems associated with live music?

Not according to Culture Minister Kim Howells. He says the swingeing increase in regulation is necessary because 'one musician with modern amplification can make more noise than three without'.

Of course it is true that amplification can make one musician louder than another playing without amplification. But that was true when the two performer exemption was introduced in 1961 and had been true for many years before that.

The important question is: does live music present a serious problem for local authorities? Does it justify such an increase in control?

The answer is no. The Noise Abatement Society has confirmed that over 80% of noise complaints about pubs are caused by noisy people outside the premises. The remaining percentage is mostly down to noisy recorded music or noisy machinery.

In fact, while noisy bands can be a problem, complaints about live music are relatively rare. In any case, local authorities have powerful legislation to tackle noise breakout from premises.

All local authorities can seize noisy equipment, and they can serve anticipatory noise abatement notices.

Camden used a noise abatement notice to close the West End musical Umoja earlier this year. One resident's complaints were enough. And the police can close noisy pubs immediately for up to 24 hours.

The trouble is, many complainants perceive the legislation as inadequate because their local authority doesn't enforce it effectively.

It looks as if musicians are being made the scapegoat for a problem that is nothing to do with live music. Certainly abolition of the two-performer licensing exemption will do nothing to reduce noise from people outside premises.

Rather late in the day, the Department for the Environment, Food and Rural Affairs (DEFRA) has just commissioned a study into the noise nuisance potential of the licensing reforms - but the study won't be completed until the Spring of 2003 at the earliest. A classic case of shutting the stable door...

The government says that standardising licensing fees, with no premium for entertainment, removes the disincentive to provide live music. This change is welcome.

However, fees are only half the problem. The other half is the potential for unnecessary local authority licence conditions. Earlier this year, Kim Howells warned the Musicians' Union that if it were to lobby for satellite tv to become a licensable entertainment, this would be 'resisted robustly' by the leisure industry.

He did not say why, but the reasons are clear. The industry does not believe government assurances that local authorities will adhere to published guidance over future licence conditions. They fear the cost implications of conditions such as monitored safe capacities, and CCTV. (Two years ago the Home Office warned all local authorities not to impose disproportionate conditions. Few, if any, took notice).

Genuine 21st century reform for live music, particularly small-scale performance in pubs and bars, would see England and Wales brought into line with Scotland and Ireland, continental Europe.

Scotland is a good example because public safety and noise is regulated by UK-wide legislation. In that country a typical bar or pub can host live music automatically during permitted hours, provided the music is ancillary to the main business.

In New York City, premises of capacity 200 or less are likewise free of a requirement to seek prior authorisation for live music. Noise breakout is strictly monitored by street patrols.

In Germany, Finland and Denmark the provision of some live music is asssumed when the equivalent of an on-licence is granted. In rural Ireland no permission is need for live music in a pub, and customers would think it very odd to suggest that it be a criminal offence unless first licensed.

The Musicians' Union has argued for reform along Scottish lines for some time. But the government has rejected this option.

Our campaign for more live music, particularly in small venues, is supported by the Arts Council, the Church of England, Equity, the English Folk Dance and Song Society and many others.

The Union recognises that premises specialising in music, or music and dance (like nightclubs) need the additional controls that licensing provide. But if live music of all kinds is to thrive in small community venues like pubs, an automatic permission, within certain parameters, is essential. We should not treat all musicians as potential criminals. That doesn't sit well with the participation and access agenda of the DCMS.

ENDS

Subject: RE: PELs UK Music needs your HELP
From: GUEST,Richard Bridge (cookie and format C)
Date: 16 Nov 02 - 07:30 AM

yes, there is a lawyer in the house.

Public or section of the public means that it's not members only (or parents of kids at the xx school only, etc)

But if it's not "public or section" then you still get caught if it's members only but the club is a "qualifying club" (I've not checked that defintion).

And if you escape both of those if it's "for consideration" OR (watch that OR) with a view to profit.

"For COnsideration" is defined. If the pub charges or the session organiser charges anything to anyone and some or all of the people to be entertained (could be both audience and players) pay.

It doe not say that the payment has to be for the entertainmment!

So - door entry fee - caught.
Raise the price of beer - caught.
Pass the hat - very probably caught.

If you escape that (and it'll be difficult for folk, but for an electric band it might work - cheap duo, paid by pub, no increase in the price of beer, but the hope of selling more of it) then it seems to me that would be "with a view to profit". Anyway since the pub is not members only, it's for the public or a section.

Stuffed.

Subject: RE: PELs UK Music needs your HELP
From: The Shambles
Date: 16 Nov 02 - 05:46 AM

This from Sheila Miller.

Well, I got into the press conference, and managed to ask two questions.
However, the answers were the predictable ones and not very helpful. I
asked, 'Given that there is already plenty of legislation on noise and
safety, why are England and Wales the only countries where it is necessary
to have a licence to sing or play music?

Why is a pub that is assumed to be
safe for 60 people to watch satellite TV not automatically presumed to be
safe for 30 people to listen to three Somerset folk singers?'

Tessa Jowell
handed the question over to Kim Howells to answer. He said, 'Well, I got
into a bit of trouble for my remarks about folk singers.' 'Oh, I know,' I
said. People laughed. He then said something about having to consider
individual cases. He said he had recently been in a pub, having a quiet
drink when a musician had come in with two amplifiers and had started
blasting away. Obviously there were no safety implications here, he said,
but he had found it unpleasant and thought many other people would too.
Then he talked of a pub that was packed with people listening to a local
band, and said there would be safety implications there. As you'll see, he
hadn't answered my questions at all.

So I said, 'But, as I said, there is
already legislation that deals with noise and safety in pubs. The
traditional music of this country is generally played without amplification
and without causing any disturbance. Why is there a presumption against
live music?'

Tessa J took over at this point; she said that the new licence
would cover music in pubs as well as the sale of alcohol, and that in fact
it would make things easier for people running pubs. Someone then came in
with a question about the government's claim that the new law would cut
costs for licensees, and I wasn't able to get in again. But they obviously
had no intention of answering the questions anyway.

Another journalist asked what the MU's attitude to the Bill was; she
understood that they were unhappy about it and thought it would make it
harder for musicians to get work. Jowell said that she believed the MU's
concern was ill-founded, and that in fact the new law would not have this
effect.
Since I got back to work a short while ago, I've had a phone call from
someone on The Guardian, asking my views as a folk club organiser on the
Bill. Someone called Ann Perkins is writing a piece on the Bill, and she
was getting various people's opinions on it. So I hope that article will be
a big one and that it will include a bit about the threat to live music.

And

I've just had a call from Ann Perkins on the Guardian. She says the article
is going to be published tomorrow. She was phoning to check the spelling of
my name, because she's using a quote from me. It may get subbed out for the
sake of length, of course, but at least that means she is covering the
issue of live music in pubs.
We should all buy the Guardian tomorrow and send or e-mail letters to the
paper about the potential harm to folk clubs, sessions and other live
musical events.


Guardian Letters (with name and address) to
[e-mail]
[e-mail]

Subject: RE: PELs UK Music needs your HELP
From: The Shambles
Date: 16 Nov 02 - 05:42 AM

Tessa Jowell in the press release and at the launch of the Bill.

"In short this is a Bill for the public, a Bill for industry and a Bill for commonsense."

Can the introduction of measures in a Bill, that 'can be argued', such as the Schedule definitions Kevin refers to - in a Bill we were all looking to to finally settle such arguments, really be described by the Minister in charge as "commonsense"?

Subject: RE: PELs UK Music needs your HELP
From: McGrath of Harlow
Date: 15 Nov 02 - 09:49 PM

I've tried reading this and my head is spinning. Is there a lawyer in the house?

One thing I note is, it looks as if riverboat shuffles and train and bus sessions could be exempt, since the list of exemptions includes:

Vehicles in motion
10 The provision of any entertainment or entertainment facilities—
(a) on premises consisting of or forming part of a vehicle, and
(b) at a time when the vehicle is not permanently or temporarily parked, is not to be regarded as the provision of regulated entertainment for the purposes of this Act.

I note there is still no definition whatsoever of "entertainment" - and the paragraphs around this seem very confused:

(2) The first condition is that the entertainment or entertainment facilities are provided—
(a) to any extent for members of the public or a section of the public,
(b) exclusively for members of a club which is a qualifying club in
relation to the provision of regulated entertainment, or for members
of such a club and their guests, or
(c) in any case not falling within paragraph (a) or (b), for consideration and with a view to profit.

(c) could very well be highly relevant to us, since it could well be interpreted to legitimise sessions which are primarily for the mutual enjoyment of those taking part, when viewed in conjunction with:

4) For the purposes of sub-paragraph (2)(c), entertainment is, or entertainment facilities are, only to be regarded as provided for consideration if any charge—
(a) is made by or on behalf of any person concerned in the organisation or management of that entertainment or those facilities, and
(b) is paid by or on behalf of some or all of the persons for whom that entertainment is, or those facilities are, provided.

But what the hell is the implication of "members of the public or a section of the public" - what kind of distinction are they drawing between "members of the public" and "a section of the public", only to say that they'll be treated as meaning the same thing anyway?

Subject: RE: PELs UK Music needs your HELP
From: The Shambles
Date: 15 Nov 02 - 09:49 PM

There is now no fee for live musical charity fund-raisers.

6) For the purposes of sub-paragraph (2)(c), the cases in which the entertainment is, or entertainment facilities are, to be regarded as provided with a view to profit include any case where that entertainment is, or those facilities are, provided with a view to raising money for the benefit of a charity.

The Government would argue (despite incorporating the fee into the compulsory 'premises' licence and increasing the overall cost to the lincesee), that there is still no fee being charged for live musical charity fund raising events.

Subject: RE: PELs UK Music needs your HELP
From: The Shambles
Date: 15 Nov 02 - 09:27 PM

PELs links to all of them

Online newspapers of the world http://www.actualidad.com/

Music is only one of many concerns in the world. It is up to those that care about music, to ensure that music is not buried underneath those important concerns and some, not so important vested interests.

If we don't do it, no one else will.

Subject: PELs UK Music needs your HELP
From: The Shambles
Date: 15 Nov 02 - 09:17 PM

Schedules
Schedule 1
Section 1
Provision of regulated entertainment
Part 1
General definitions

The provision of regulated entertainment
1 (1) For the purposes of this Act the "provision of regulated entertainment" means the provision of—
(a) entertainment of a description falling within paragraph 2, or
(b) entertainment facilities falling within paragraph 3,
where the conditions in sub-paragraphs (2) and (3) are satisfied.

(2) The first condition is that the entertainment or entertainment facilities are provided—
(a) to any extent for members of the public or a section of the public,
(b) exclusively for members of a club which is a qualifying club in
relation to the provision of regulated entertainment, or for members
of such a club and their guests, or
(c) in any case not falling within paragraph (a) or (b), for consideration and with a view to profit.

(3) The second condition is that the premises on which the entertainment or entertainment facilities are provided are made available for the purpose, or for purposes which include the purpose, of enabling the entertainment concerned (whether of a description falling within paragraph 2(1) or paragraph 3(2)) to take place.

To the extent that the provision of entertainment facilities consists of making premises available, the premises are to be regarded for the purposes of this sub-paragraph as premises "on which" entertainment facilities are provided.

(4) For the purposes of sub-paragraph (2)(c), entertainment is, or entertainment facilities are, only to be regarded as provided for consideration if any charge—
(a) is made by or on behalf of any person concerned in the organisation or management of that entertainment or those facilities, and
(b) is paid by or on behalf of some or all of the persons for whom that entertainment is, or those facilities are, provided.

(5) In sub-paragraph (4), "charge" includes any charge for the provision of goods or services.

Licensing Bill [HL]
Schedule 2 — Provision of late night refreshment
Part 2 — Exemptions

(6) For the purposes of sub-paragraph (2)(c), the cases in which the
entertainment is, or entertainment facilities are, to be regarded as provided with a view to profit include any case where that entertainment is, or those facilities are, provided with a view to raising money for the benefit of a charity.

(7) This paragraph is subject to Part 2 of this Schedule (exemptions).
Entertainment

2 (1) The descriptions of entertainment are—
(a) a performance of a play,
(b) an exhibition of a film,
(c) an indoor sporting event,
(d) a boxing or wrestling entertainment,
(e) a performance of live music,
(f) any playing of recorded music,
(g) a performance of dance,
(h) entertainment of a similar description to that falling within
paragraph (e), (f) or (g), where the entertainment takes place in the presence of an audience and is provided for the purpose, or for purposes which include the purpose, of entertaining that audience.

(2) Any reference in sub-paragraph (1) to an audience includes a reference to spectators.

(3) This paragraph is subject to Part 3 of this Schedule (interpretation).
Entertainment facilities

3 (1) In this Schedule, "entertainment facilities" means facilities for enabling persons to take part in entertainment of a description falling within sub-paragraph (2) for the purpose, or for purposes which include the purpose, of being entertained.

(2) The descriptions of entertainment are—
(a) making music,
(b) dancing,
(c) entertainment of a similar description to that falling within
paragraph (a) or (b).

(3) This paragraph is subject to Part 3 of this Schedule (interpretation).
Power to amend Schedule

4 The Secretary of State may by order amend this Schedule for the purpose of modifying—
(a) the descriptions of entertainment specified in paragraph 2, or
(b) the descriptions of entertainment specified in paragraph 3,
and for this purpose "modify" includes adding, varying or removing any description.


Licensing Bill [HL]
Schedule 2 — Provision of late night refreshment
Part 2 — Exemptions
Part 2
Exemptions

Film exhibitions for the purposes of advertisement, information, education, etc.
5 The provision of entertainment consisting of the exhibition of a film is not to be regarded as the provision of regulated entertainment for the purposes of this Act if its sole or main purpose is to—
(a) demonstrate any product,
(b) advertise any goods or services, or
(c) provide information, education or instruction.

Film exhibitions: museums and art galleries
6 The provision of entertainment consisting of the exhibition of a film is not to be regarded as the provision of regulated entertainment for the purposes of this Act if it consists of or forms part of an exhibit put on show for any purposes of a museum or art gallery.

Music incidental to certain other activities
7 The provision of entertainment consisting of the playing of recorded music is not to be regarded as the provision of regulated entertainment for the purposes 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.

Use of television or radio receivers
8 The provision of any entertainment or entertainment facilities is not to be regarded as the provision of regulated entertainment for the purposes of this Act to the extent that it consists of the simultaneous reception and playing of a programme included in a programme service within the meaning of the Broadcasting Act 1990 (c. 42).

Religious meetings or services
9 The provision of any entertainment or entertainment facilities for the purposes of, or for purposes incidental to, a religious meeting or service is not to be regarded as the provision of regulated entertainment for the purposes of this Act.

Vehicles in motion
10 The provision of any entertainment or entertainment facilities—
(a) on premises consisting of or forming part of a vehicle, and
(b) at a time when the vehicle is not permanently or temporarily parked, is not to be regarded as the provision of regulated entertainment for the purposes of this Act.


I would also draw your attention to clause 134 (1)(a) which criminalises any musician who performs anywhere without first checking that the place is licensed/authorised for the performance. Clause 137 allows a defence of 'due diligence', but basically it means that if the musician doesn't check first he/she could face heavy fines and a jail sentence.

Clause 134 can be found in the full act. Link to the Bill on the Parliament site

http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldbills/001/03001.i-viii.html

Please help.