Memorandum submitted by Jazz Services Ltd and the Association of British Jazz Musicians

1. Jazz Services

Jazz Services provides a voice for jazz, promoting its growth; accessibility and development in the UK and abroad by providing services in information, touring, education and communications.

2. Association of British Jazz Musicians.

The Association of British Jazz was formed over 18 years ago to represent the interests and needs of jazz musicians in the UK, in particular those who are members of the Musicians' Union.

3. The Licensing Act 2003 and the inequitable treatment of live music


During its transition period in which pubs, bars and restaurants converted their existing licenses to the new 'premises licence', the playing of recorded music was treated as an 'existing licensable activity' or 'grandfather right' and had to be included in the licence. The automatic entitlement to live musicians was removed.


This is set out under the licensing Act 2003, Schedule 8 'Transitional Provision etc - Part 1 - Premises Licences.' Paragraph 1 (1) opens with various definitions, including:


"existing licensable activities", under an existing licence, are -


(a) the licensable activities authorised by the licence, and


(b) Any other licensable activities which may be carried on, at the premises in respect of which the licence has effect, by virtue of the existence of the licence"





Without any further qualification this would have allowed both the playing of recorded music and the provision of music and singing by one or two live performers to carry forward as a 'grandfather right'. That is because the old 'two in a bar' exemption covered both those forms of entertainment. However the government decided that this was not to be, Para 1 (2) (a) below saw to it that the two live performer element was taken out.


"In determining, for the purposes of paragraph (b) of the definition of 'existing licensable activities' the other licensable activities which may be carried on by virtue of a licence - (a) section 182 of the 1964 Act (relaxation of law relating to music and dancing licenses) is to be disregarded so far as it relates to public entertainment by way of music and singing provided by not more than two performers..."


Here is the nub of the problem and the source of contention: the Licensing Act militates against live music in favour of recorded sound and television.

Furthermore the reality of the Act is that music making is now regulated in much wider circumstances.


4. Jazz Services Live Music Survey


Jazz Services in conjunction with the Musicians' Union and with the support of the Association of British Jazz Musicians, National Campaign for the Arts, Fiddle On Magazine and the English Folk Dance and Song Society conducted a survey of 2312 jazz musicians in late 2003 and early 2004, to gauge the importance of the live performance of jazz across England and Wales.


A total of 281 musicians' survey responses analysed, representing a 12% response rate from the 2312 questionnaires sent out by Jazz Services Ltd between December 2003 and February 2004.


Key findings:


78 performances a year was the overall average, but this conceals a sharp divide between 50% of jazz musicians who average only about 30 performances a year, and the remaining 50% who average about 127 performances a year.

The overall average is inflated by a relatively small proportion of musicians performing over 150 times a year (about 14%).

20% of all performances were under the 'two in a bar rule'.

45% of jazz musicians participated, or suspect that they participated in 'two in a bar' gigs in premises without a public entertainment licence.

This group estimated that nearly half their annual gigs (49%) were 'two in a bar'.

Most jazz musicians worked in pubs (81%), jazz clubs (74%), restaurants (63%), arts centres (58%) and concert halls (51%).

49% worked in public open spaces.

80% sought to earn income through music.

41% reported no recent change in the frequency of their gigs.

About a third reported a recent decline in the frequency of their gigs.

Of these, the two most cited reasons were 'venue closure' (53%) and a 'venue manager change' (50%).

67% of those who cited recent changes listed other causes, including lack of funding and licensing laws.


5. Department for Media Culture & Sport Small Venues Survey


DCMS commissioned Ipsos MORI to survey small venues to gauge whether they are taking advantage of the new rules brought in under the Licensing Act 2003. The survey looked at 2,101 establishments, most with a capacity of fewer than 500 people (including pubs, restaurants and village halls) to ascertain how many have a licence to put on live music.


It showed that:


63% have either obtained a music licence (61%) or put on live music via other means (2%) - compared to 60% under the old laws;

A quarter (25%) of premises now have a licence to put on music for the first time;

Of the small proportion (7%) of venues that used to operate under the 'two in a bar rule', around 70% now have live music licences; and

Fewer than 2% had their live music applications refused. 1


However, Hamish Birchall, in a press statement dated 16th December 2006, stated:


"The fact is under the old rules 100% of venues with an alcohol licence could have one or two musicians whenever they were open. Now it would seem that around 40% have lost that automatic entitlement. And of the 60% or so of venues that can now have more than two musicians, about half say they are unlikely to do so." 2



6. The Live Music Forum and the Licensing Act 2003


The Live Music Forum reported its findings on the impact of the new licensing regime in July 2007. The nub of its findings are as follows:


"1.9 Based on all the evidence we have before us, it is the overall conclusion of the Live Music Forum that the Licensing Act 2003 has had a broadly neutral impact on the provision of live music.


1.10 However, it is also true to say that the Licensing Act has not led to the promised increase in live music. On a number of occasions Government Ministers publicly stated that the Licensing Act would result in a "vast increase" or an "explosion" of live music. Members of the Live Music Forum remain unconvinced by these comments. The promotion of live music is not one of the objectives of the Licensing Act and we view with some scepticism any belief that the Act will in itself lead to a growth in live music." 3




7. The Musicians' Union and Licensing Act 3


The Musicians' Union published a Policy Statement on the Licensing Act 2003 in June 2007. The Union's recommendations are set out below.


"After extensive monitoring, research and internal discussion the Musicians' Union is still of the opinion that the inclusion of regulated entertainment in the Licensing Act is unnecessary, and at the first opportunity it will campaign for its removal from the prevailing licensing legislation.


We support the introduction of most of the following proposed changes to the incidental music provisions and seek their introduction but with the deletion of 'volume' being included as a 'test':


'In considering whether or not music is incidental, one factor may be whether or not, against a background of the other activities already taking place, the addition of music will create the potential to undermine the four licensing objectives of the Act. Other factors might include some or all of the following:


Is the music the main reason for people attending the premises?

Is the music advertised as the main attraction?

Does the volume of the music disrupt or predominate over other activities?


Conversely, factors which would not normally be relevant include:


Number of musicians, e.g. an orchestra may provide incidental music at a large exhibition.

Whether musicians are paid.

Whether the performance is pre-arranged.

Whether a charge is made for admission to a premises.


We firmly believe that the Government should introduce a fast track, and importantly an inexpensive, method of varying a licence to include regulated entertainment... We believe that the government should consider tangible benefits in the form of tax breaks etc for venues that show a clear commitment to the provision of live music. We strongly believe that there is a clear case for such an exemption to be introduced for venues with a capacity of 100 or less. 4




8. Incidental Music


In February 2006, Jazz Services, in conjunction with the Association of British Jazz Musicians, conducted a research exercise to try and define the term 'incidental music'.


In common sense terms, 'incidental music' refers to musicians, typically in a restaurant or bar, providing background music to the main activity of eating, drinking, or socialising.


Under the new system, incidental music does not need a licence. In practice, however, many are unsure about the exact distinction between music which is incidental and music which constitutes a performance in its own right. Suggested factors include volume of music, whether the music is amplified or non-amplified, location of musicians within a venue, whether or not tickets are issued, and whether or not the music is advertised, but there is no strict definition. Currently, the Department of Culture, Media and Sport guidelines indicate that "it will ultimately be for the courts to decide whether music is "incidental" in the individual circumstances of any case." The fear is that, unwilling to provide test cases for the courts, venue managers could decide that providing incidental music is too large a risk. While there is no concrete evidence of this the fact remains that the notion of 'incidental music' remains untested in the courts. Therefore it remains a crucial area for exploitation.


652 promoters were mailed and 64 questionnaires were returned: a response rate of 10%.


*Please note that some replies had more than one definition or description and

some had no comment or reply at all.




1. How would you define "incidental music"?




Not the main purpose for visiting an establishment


Background music (no definition)


No admission fee


Does not demand attention


No advertising


Recorded music rather than live


On the same level as recorded music




The band has no more than 2 or 3 musicians


Secondary activity


Performance not in a specifically music venue


Not a performance


Not on a regular basis


Casual and unplanned


Performance with no dedicated audience


Music written for a play


Margin of error



Total %





2. Under your definition of incidental music, would you or your venue managers employ jazz musicians on that basis?








Not sure




In the future







Total %






3. Please provide a brief description of your direct or indirect experiences of the new licensing regime.













Total %





9. Conclusions

9.1 The Licensing Act 2003 has militated against live music in favour of recorded sound and

9.2 The Licensing Act has restricted the right of musicians to seek and obtain work by the

removal of the exemption that disallowed the right for the Provision of Music and
Singing by one or two live performers.


9.3 Under the old rule 100% of venues could employ one or two musicians.
Under the Licensing Act 2003, 40% of venues have lost that automatic entitlement.

9.4 The position of performing live music on licensed premises has been further
exacerbated by the notion of incidental music and the absurd solution to the problem
of definition of incidental that it will be "ultimately for the courts to decide".


9.5 The Licensing Act has not led to the promised increase in live music by Government


9.6 Jazz Services and the Association of British Jazz Musicians strongly recommend that
legislation is introduced that provides for an exemption for venues with a capacity of
150 or less.



End Notes.




2. Latest Music Survey 'encouraging' for Small Venues

07.12.2006 15.17


3. Live Music Forum Findings and Recommendations July 2007. DCMS.


4. Musicians' Union Licensing Act 2003 - Statement of Policy. John Smith 2007


September 2008