IMRO’s Methods of Licensing Public Performance
1. Public Performance
Irish Copyright legislation does not attempt to define what constitutes a performance in public. The general rule which has emerged from decisions by the Courts over the years, though, is that any performance which takes place outside the domestic or quasi-domestic circle is ‘public’ for this purpose regardless of the nature of the entertainment or the kind of premises where the performance takes place, and irrespective of whether a charge for admission is made. For example, performances in clubs at which attendance is restricted to members, and performances in factories, have been held to be public performances for the purpose of the Act.
Through assignments from its own members and through affiliation agreements with foreign societies, IMRO owns or controls the public performance right in most of the copyright music played in Ireland. Its licence is therefore necessary for practically every public performance of copyright music in this country.
IMRO’s policy is to grant a licence to any prospective music user provided only that the person concerned is prepared to enter into the standard licence contract and pay the appropriate tariff royalty. The copyright in a work is infringed by a person who without the licence of the copyright owner, undertakes or authorises another to undertake a public performance of that work. The onus therefore lies on a music user and venue owner to obtain the permission of the copyright owner before public performances begin. Since IMRO controls the performing right in the musical works vested in it by copyright owners, it maintains nation-wide staff in the field to explain this obligation to unlicensed users of copyright music and to issue licences to them. Licences are also issued directly by the IMRO Head Office.
The tendency of music users not to seek an IMRO licence until approached by its IMRO staff means that the cost of issuing new licences is high. For this reason, unless the music user asks for a licence before being approached by IMRO staff. the royalty for the first year of a licence is 50% higher than the subsequent years charges.
IMRO is reluctant to litigate with music users who do not comply with the law and it takes all reasonable steps to ensure that music users are fully aware of their obligations. However, if a music user refuses to enter into a licence after the legal obligations have been fully explained to him/her, copyright infringement proceedings are begun in the Circuit Court. These proceedings seek an injunction preventing the performance of any of IMRO’s copyright repertoire in public until a licence is obtained and paid for, and IMRO also claims damages and costs.
2. IMRO’s Licences
IMRO licences are in the form of contracts which run from year to year until cancelled by either party. They are blanket licences, authorising the public performance of any of the millions of works which IMRO controls on behalf of both its members and the members of its affiliated societies throughout the world. The royalties payable under IMRO licences vary depending on the nature of music usage on the premises concerned. The general nature of the licence contract is that it authorises the licensee to perform, or to cause or authorise the performance of IMRO’s copyright repertoire, in consideration for which the licensee undertakes to pay the appropriate royalty. Naturally, it does not oblige the performance of all or any part of IMRO’s repertoire. The extent to which that repertoire is performed, within the terms of the licence, is the licensee’s choice entirely. It would obviously be quite impracticable for IMRO to monitor every performance given by each of its licensees, just as it would be intolerable for most licensees to keep a precise check on the nature and extent of all performances in their premises. Therefore, IMRO must be told immediately in writing of any reduction in music usage levels if it is to agree to a corresponding reduction in the royalty. Similarly, increased music usage must be promptly notified to IMRO by licensees.
IMRO’s licences cover both ‘live’ performances and performances by mechanical means, e.g. juke boxes, radio and television, video, record, CD, tape players, MP3 players, etc. Licences are in issue for numerous categories of premises, including cinemas, clubs, concert halls, discos, town halls, church halls, public houses, restaurants, shops, factories, universities, ships, aircraft, sports stadia, theatres and many others. Nearly 30,000 establishments hold an IMRO licence in Ireland.
In certain cases, permits (or one off licenses) are issued for the use of IMRO’s repertoire, or sometimes for specified works, either at a single performance or at a short series of performances at premises not licensed for those performances. If a copyright musical work is performed in public without the copyright owner’s consent then the copyright owner has a claim against not only the promoter of the performance but also the proprietor of the premises (unless he can show that he had no reason to believe that copyright infringement would take place) and the performers. It is not IMRO policy to grant licences to performers (other than to brass and military bands as such, for performances in public places). IMRO normally issues its licence to the proprietor of the venue concerned, so relieving the promoter of a musical entertainment at that venue from having to apply for a special permit licence. Promoters should make a point of ensuring that the proprietor holds an IMRO licence which will cover the occasion, when hiring a premises for a function involving the use of music.
Where a business operating multiple premises needs a licence, IMRO may issue a single licence to the Head Office of the company concerned. Royalties are then assessed depending on music usage and the number of premises involved. Since the licence is a contract it follows that the payment of royalties is an obligation enforceable by law. Those who remain in default after due reminders are issued, are sued in the appropriate courts as ordinary commercial debtors.
3. The Assessment and Payment of Royalties
Royalty charges payable by licensees are calculated under a series of carefully devised tariffs which normally take account of the type and frequency of the performances, the nature of the venue and other relevant circumstances. Many tariffs have been set after consultation with national associations representing the classes of music user to whom they apply.
As explained earlier, IMRO’s charges for the first year of a licence are 50% higher than the continuing royalty, unless the licensee sought that licence from IMRO before the relevant performances began.
IMRO’s principal tariffs are adjusted annually for inflation. The annual adjustment is by reference to movements in the Consumer Price Index.
Many IMRO licensees pay a flat annual charge which does not need to be adjusted from year to year, other than for inflation. These include most premises licensed only for background music. However, where the royalties are calculated as a percentage of admission receipts, or the number of employees (as in the case of factories and offices) or on a fluctuating number of live performances, dances, discos, or other events with music, then in fairness to both IMRO and the music user, the licensee may be asked to complete an annual return of the music usage so that the correct charge can be established.
Royalties are payable annually in advance. A licensee whose royalty is calculated and adjusted annually therefore pays, in the first year, an amount based on an estimate of the licensee’s music usage during the coming year. At the end of the year this payment is adjusted to the actual figure by reference to the returns sent in by him. For the ensuing year the licensee pays the equivalent of the royalty calculated for the previous year, that payment in turn is then adjusted twelve months later when the actual details can be ascertained. Licensees must inform IMRO of changes to performance particulars within latest 1 month of the end of year period to which the change relates, otherwise IMRO is not in a position to make an adjustment to the liability owed.
4. IMRO’s tariffs for Public Performance
Details of the scope and cost of IMRO tariffs may be obtained from the Licensing Department or on http://www.imro.ie/music-users/imro-tariffs/. Tariffs contain up-to-date information on the actual charges levied and many are subject to periodic review. Most tariffs provide for automatic increases in line with the cost of living increases.