When Is Your Recorded Music is Not Recorded Music?

Picture the scene if you will- Saturday night at a village pub, and the juke box is playing hits of the past 40 years. Local Authority noise enforcement officers are in a nearby home, and judge the volume of the jukebox to be so load that it constitutes a statutory noise nuisance.

The jukebox continues until the early hours of the morning, well beyond the terminal hour for recorded music on the premises licence.

The Environmental Protection Act 1990 provides a raft of measures to prevent noise disturbance, including a noise abatement notice. In this case, however, the Local Authority elected to bring a prosecution under the Licensing Act 2003, alleging that the playing of the jukebox is recorded music, outside the terms (hours) of the premises licence.

Recorded music it is, and played well beyond the hours permitted by the premises licence it was. But a breach of the licence or the Licensing Act 2003 it was not.

A common misconception of the Licensing Act is that live and recorded music at background levels is permitted. The Act goes well beyond this, providing that any live or recorded music which is incidental to another activity (not itself entertainment) does not need a licence. This recent case demonstrates the distinction between background music and incidental music with clarity. While the definition of background music involves an assessment of volume, incidental music can be at any volume, as long as it remains secondary to the other activity or activities.

In a public house, most entertainment will be secondary to the main activity of the sale of alcoholic and non alcoholic refreshment. Factors determining whether music is incidental or not may include whether the entertainment is advertised or not, the purpose to which customers attend the pub, and whether other activities can and do take place during the entertainment. Volume is not normally a deciding factor, but each case will be decided on its own facts.

It would be preferable to have a premises licence for the hours during which entertainment is provided. It is not essential, however, and this handy exemption should not be forgotten when planning an event with entertainment. It should definitely not be forgotten where it is alleged that live or recorded music has taken place outside the terms or conditions of the premises licence.

Contact our Compliance and Regulatory Department for more information.

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