Memorandum submitted by the British Music Rights

 

Background :

 

1. British Music Rights is the consensus voice of Britain's 60,000 composers and songwriters, music publishers and their collecting societies[1]. Our interest in this CMS select committee inquiry arises from our support for measures that will lead to an increase in the opportunity to partake in and the number of performances of live music in the UK.

 

2. Feargal Sharkey, chief executive of British Music Rights, was formerly the chairman of the Live Music Forum, which was tasked by the Department of Culture, Media & Sport to monitor and evaluate the impact of the Licensing Act 2003 on the performance of live music. The Live Music Forum published its findings and recommendations in July 2007. Mr Sharkey is at the disposal of the CMS Select Committee to provide supplementary oral evidence to this inquiry either in his current capacity or as the former chairman of the Live Music Forum.

 

3. The live music sector is an important contributor to the UK's economy and is fundamental to our cultural health and wealth. Total GVA in music is 6 billion, or 1% of the UK's GVA; of which 37% is due to live performance.[2] The live music scene has been in recent years the fastest growing part of the music industry, employing around 45% of the workforce[3].

 

4. Career progression for many music creators typically includes the performance of music in small venues at in the early stages of a career before advancing to larger capacity venues as musicians grow a fan base and hone their talent. Opportunities for live performance in small venues therefore provide essential seeding for the music sector as a whole.

 

5. Income received from public performance is an important source of revenue for creators, and strong growth from public performance income is increasingly important in the light of the decline in revenue from CD sale royalties.[4]

 

6. As well as providing the foundation for live music created in the UK to be performed in large venues around the world, live music in small venues itself generates significant income for music creators, performers and venue proprietors. The Performing Right Society estimates that as much as a third of its public performance income from live music comes from small venues, including those in the hospitality sector. Increasingly, hospitality venues recognise that live music is a more positive way to attract customers compared to methods such as drinks promotions.

 

7. The Government's stated policy is to support the growth of the UK's live music sector and nurture the creative capabilities of the next generation, towards the goal of making the UK a global hub for the creative industries. We share the Government's assessment that "nurturing young bands and artists and making sure they have a place to play is absolutely essential[5]," and that "maintaining the health of the vibrant [live music] sector will depend to a significant degree on identifying, encouraging and nurturing talent at the grassroots level."[6]

 

8. We applaud efforts to support the continued growth of the live music sector, which has a positive knock-on impact upon the 60,000 songwriters and composers whom we represent. In addition, small venues play a vital role in sustaining the live performance of certain genres of music, such as folk and traditional music.

 

Impact of Licensing Act on live music

 

9. According to the findings of the Live Music Forum, the Licensing Act has had an overall neutral impact on the number of venues seeking to put on live performance: "the overall conclusions of the Live Music Forum, based on al the evidence we currently have before us, is that the Licensing Act has had a broadly neutral effect on the provision of live music."[7]

 

10. This conclusion was supported by a follow-up study commissioned by DCMS and carried out by BMRB in December 2007 -"The Licensing Act does not appear to have been a major factor in decisions relating to whether or not venues provided live music."

 

11. Given the Government's stated aim to "maximise the take-up of reforms in the Licensing Act 2003 relating to the performance of live music; and to promote the performance of live music in England and Wales generally," the Licensing Act appears to have failed in delivering this aim.

 

12. The Live Music Forum report concluded: "it is also true to say that the Licensing Act has not led to the promised increase in live music."

 

13. Likewise, the follow-up study found that the potential for growth in staging live music had failed to be grasped and is still there for the taking: "...four in ten venues not regularly staging live music said they would consider doing so in the future. That equates to more than a fifth of all venues in the survey, suggesting the possibility of substantial future growth in the proportions of venues staging live music."

 

Reasons for the failure of the reforms to increase live music

 

14. Research has shown evidence of a perception that many people -- from some residents groups to local authority officials to the police -- have biases as to the impact of live music on the four licensing objectives.

 

15. DCMS's own research, commissioned through the Live Music Forum and carried out by Mori, found that 77% of all objections to applications for live music came from local residents or their representatives, with 68% of those objections specifically relating to concerns about the noise level of music; or noise levels from customers. [8] There seems to be an automatic assumption that live music, without question, will give rise to a noise nuisance.

 

16. However, the Live Music Forum's investigations into actual noise complaints made showed that the vast majority of noise complaints relate to music from a domestic premise (a neighbour playing music too loud); this is estimated to account for 90% of noise complaints. Other domestic noise complaints, barking dogs, and burglar alarms all received more complaints than the generic category called "entertainment noise from commercial premises"[9].

 

17. We remain concerned that the gap between the commonly held perception that live music will likely create a noise nuisance - and the reality that noise complaints about entertainment premises is relatively rare - remains unchallenged. Indeed, the misconception about the negative impact of live music on the local environment seems to be fuelled by those in authority, such as the police.

 

18. The recent case of Wiltshire police, who persuaded magistrates to order the cancellation of the first day of the Moonfest music festival because of fears that the appearance of Pete Doherty would lead to public disorder, shows how the Licensing Act is open to abuse. The Wiltshire constabulary used Section 160, which provides that premises may be closed in an area where there is expected to be disorder to cancel the show. This last minute court case came weeks after the original application which included security provision had been submitted by the organisers of Moonfest, scrutinised by local Responsible Authorities including the police, and approved.

 

19. The Act states that a magistrates court may not make such an order unless "it is satisfied that it is necessary to prevent disorder." The order was granted on evidence of an incident at the Royal Albert Hall, captured and posted on YouTube, whereby fans climbed onto the stage in an attempt to embrace lead singer Pete Doherty. There was no suggestion of any violence; only adulation. The incident reflected far more the inadequate security arrangements of the Royal Albert Hall than the propensity for violence to erupt as a result of the performance of live music.

 

20. The chief superintendent of the Wiltshire constabulary is quoted as stating: "We became concerned because the organiser did not appear to have due cognisance of all the risks. We carried out an analysis of what Pete Doherty and his band does. What he does as part of his routine is to gee up the crowd. They speed up and then slow down the music and create a whirlpool effect in the crowd. They (the crowd) all get geed up and then they start fighting." In this case, the Wiltshire police, and the local magistrates, demonstrated a wholly unacceptable bias against popular music in blindly linking the exuberance of fans in one venue in a different city to the likelihood of violent disorder.

 

21. Such an automatic and unsubstantiated link between live music and the likelihood of violent disorder reveals the yawning gulf in the police and magistrates' understanding of popular music culture. Had a similar interpretation and application of the Licensing Act been applied over the past 50 years, it would have prevented the majority of live music events throughout the history of popular music, including practically every concert by the Beatles, the Rolling Stones, The Who and every other act to follow since.

 

22. Nor is there any provision for appeal against biased rulings and applications of the law, save for judicial review. We do not consider the option of judicial review to be a proper or acceptable option, given the time and expense involved, particularly as the vast majority of small premise owners and managers have meagre resources with which to fight a case in the courts.

 

23. The Government itself is also partly responsible for propagating the fallacy that live music frequently poses a societal threat by pandering to the fears of the police and public. Inclusion of live music within the parameters of the Licensing Act officially situates it as a potential threat and menace to public safety and good order. Those in the music industry have consistently argued that live music should not be lumped into regulations intended to deal with alcohol, crime and disorder but instead be on a par with regulations governing the use of juke boxes and wide/projected screen sports.

 

24. In a DCMS press notice dated 17th December 2007, Former Secretary of State James Purnell stated that ""The live music industry is clearly booming but there hasn't yet been the increase in live music in small venues such as restaurants that we had hoped for. I want to do everything we can to support live music. To help ensure that, we will explore exemptions for some venues. Clearly we'd only be looking at exemptions for events that don't cause public nuisance or compromise public safety..."

 

25. We recommend that the Government honour its commitment and explore the benefits of live music being removed from the regulated entertainment provision; and we recommend the Government cease qualifying its support for the promotion of live music with misleading references to safety and nuisance in the same breath.

 

26. Apart from the bias against live music, there may be bureaucratic reasons why the Licensing Act has not heralded an explosion in premises seeking to stage live music. An application to vary a premises license specifically for live music would incur average application costs in the region of 1,500[10] - a considerable outlay for small premises. Around 39% of licensed premises do not have a license that provides for live music. The Live Music Forum report concluded that "the requirement to repeat all the application process to obtain a license for live music would appear to present a considerable and unnecessary regulatory burden. If real progress is to be made in encouraging some, or indeed any, of those 39% of smaller licensed premises currently not licensed for live music to vary their licence, then we can see no alternative but to reduce the burden of the application process."[11]

 

27. The Government is currently consulting on proposals to introduce provision for premise owners to make "minor variations" to their original licence, stating that its intention is that "applications to vary a licence for live music should benefit from the minor variations process..." Our key recommendation is that live music be removed completely from the provisions of the Licensing Act, as stated in paragraphs 25-26 above. That said, we do not believe that the minor variations proposals, left unamended, will benefit applicants who wish to vary a licence for live music. We have made representations to the DCMS in their current consultation to make a number of recommendations in the wording of the Order and in the wording of the accompanying Guidance Notes.

 

28. We also recommend that, as part of the simplification procedures, ministers allow applicants who have been rejected a minor variation should have the right to appeal to the local magistrates.

 

29. Finally, we strongly recommend that Government should commit to a periodic review of decision-making patterns on minor variations within a sample of licensing authorities to see whether patterns emerge on meeting statutory response times, and to uncover evidence of bias against live music.

 

 

For more information contact Cathy Koester on 020 7306 4446 or email: cathy.koester@bmr.org


 

Annex

 

Case study of bias against live music as a threat to the licensing purposes

 

The Guardian

The silencing of Pete Doherty

Wiltshire police decided the Babyshambles frontman has the ability to 'gee up' an audience - and therefore must be stopped

Moral panic, censorship and popular music go a long way back. From the spectre of Teddy Boys rampaging through British cinemas to the strains of Bill Haley and Blackboard Jungle, Elvis being filmed from "the waist up" on the Ed Sullivan Show and the Stones singing Let's Spend Some Time Together, through to the "filth and the fury" of the Pistols' Bill Grundy encounter, the Beastie Boys, Acid House, So Solid Crew, Amy Winehouse and on and on and on.

To that list, we must now - apparently - add the name of Pete Doherty. Today it was announced that the Babyshambles frontman has been banned by Wiltshire Police from headlining the Moonfest festival in Westbury.

The reason? Preventing crime and disorder.

According to police superintendent Paul Williams, Doherty has the ability to "gee up" his audience to a dangerous frenzy; creating a "whirlpool effect" through sheer power of musicianship and capable of sparking serious public disorder among his followers.

Slipping into Mary Whitehouse mode, he adds: "Experts are telling us that the profile of fans that follow Pete Doherty and Babyshambles is volatile and they can easily be whipped up into a frenzy, whereas the profile of someone that would follow around Cliff Richard or Bucks Fizz, for example, is completely different."

Doherty's unwholesome powers can be judged in all their glory here. Admittedly, this is boisterous behaviour for a such a prestigious venue as the Albert Hall; although, possibly, not as quite as frenzied as this, and certainly a long way short of this.

However, whatever your views on Doherty, there are serious implications here for the wider music community. Not least as to how the Wiltshire constabulary, utilising section 160 of the 2003 Licensing Act, can wield such unreasonable and disproportionate powers in deciding what kind of musicians can and can not play live in their immediate vicinity.

Certainly, the limits of section 160, which allows premises to be closed down if there is nothing more than a perceived risk of "disorder or expected disorder", arose on a number of occasions in my previous capacity as chairman of the Live Music Forum. Under terms of the Act, a local authority and constabulary has 28 days in which to undertake all checks. Only after these are agreed is a performance licence granted - although this is the first time that it has been used to actually censor an artist.

According to the Moonfest organisers, Wiltshire police, having attended every public licensing meeting over the last six months, were fully aware that Babyshambles would be appearing, and actively supported the event when a licence was granted without objection on July 24.

This is all verified on the district council's website. Clearly, in the interim period, Wiltshire police had a sudden change of mind, deciding that Babyshambles fans were, in fact, a risk to public order.

I am now in the process of writing to culture secretary Andy Burnham and look forward to hearing back as to what these extraordinary circumstances were. No doubt UK musicians would also appreciate clarification as to where the line of censorship is drawn.

As someone who oversaw the implementation of the Act, I can confirm that it was actually designed to modernise an archaic system of licensing, not to enable faceless bureaucrats ride roughshod over culture and creativity and have undue influence over an artist's ability to forge a career - regardless of their whirlpool inciting powers or not.

About this article

This article was first published on guardian.co.uk on Wednesday August 20 2008. It was last updated at 11:35 on August 21 2008.

 

September 2008



[1] Our member organisations are: Music Publishers Association; British Academy of Composers & Songwriters; MCPS-PRS Alliance.

[2] Data published by Creative & Cultural Skills. See http://www.ccskills.org.uk/pdf/Music%20Creative%20Choices%20Presentation.pdf

[3] "A Baseline Report of the Creative Industries" - published by Creative & Cultural Skills, June 2007

[4] According to the PRS half year results published in August 2008, public performance income - the licensing of leisure outlets and work places playing music - was driven by continued strong performance from live pop concerts (up 5.4%) and improved licensing activity.

[5] DCMS Press Notice 153/07, "New Plans to help live music thrive", quoting then Secretary of State James Purnell, 17 December 2007

[6] Secretary of State's Response to the Live Music Forum's report, 17th December 2007, paragraph 7.

[7] Live Music Forum report, paragraph 3.9, published July 2007

[8] Live Music Forum Findings & Recommendations, published by DCMS July 2007, p. 33-35

[9] Live Music Forum Findings & Recommendations, published by DCMS July 2007, p. 33-35

[10] Source: The British Beer and Pub Association, quoted in 3.80 of the Live Music Forum findings and recommendations, July 2007

[11] Para 3.87 of the Live Music Forum findings and recommendations, July 2007