15.1: PERFORMING RIGHTS

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Performing Rights and PRS

Whenever music is used or played on the radio or on a record or CD player there are certain things happening which are of interest for the various copyright owners. For our purposes here, when music is played there are two things happening simultaneously:-

When someone plays a record or cd at home they have already payed for the privelege of doing so in the retail price. You will notice that on most recordings there is the text "All rights of the manufacturer and of the owner of the recorded work reserved. Unauthorised copying, public performance and broadcasting of this work prohibited". This means that paying for a record enables the purchaser to play it at home but cannot use it for helping material gain. But if the record is used in a situation where there is gain, either directly or indirectly from the use of the record, copyright is being infringed or performance royalties are owed.

The philosophy involved in this principle is that if, for example, music, either live or from a device such as a juke box, is used in order to encourage people to spend money at a bar or wherever, then the composer of the songs being used deserves some of that money.

The same goes for commercial radio. If a song is used on a radio station it is used partly to keep listeners tuned in so that they will hear the adverts and spend their money on the products advertised. Some of the money earned by the station in advertising revenue should be passed on the the songwriters of the material used. This is primarily the function of PRS (Performing Rights Society).

The Performing Rights Society

How PRS Fits Into The Copyright System

As has already been mentioned, the restricted acts comprised in the concept of copyright attach to the copyright owner rather than the author. In order to enable the copyright owner to exploit his rights, the 1988 Act allows him to assign, ie transfer them to another. Moreover, that assignment may be limited so as to apply to one or more of the restricted acts, and, indeed this is the case when PRS takes an assignment of rights from its members, who assign to the Society the rights to:

... their musical works. These rights are collectively referred to as the "performing right".

The effect of that assignment is to make PRS the owner of the performing right in its member works (irrespective of whether those works were created before or after the assignment).

Since it owns the performing right, PRS can license others to do any or all of the restricted acts comprised in that right, which it duly does in return for a royalty fee. PRS subsequently distributes this royalty fee to its members in accordance with its internal rules and regulations.

Further Information and Useful Contacts

Amateur composers or lyric writers should be extremely cautious in dealing with publishers or others who ask for a contribution towards the expenses of publication or promotion of their work. This is not a practice to which reputable publishers normally resort.

The Music Publishers' Association produce a booklet, which lists the names, addresses and telephone numbers of all its members, and also provide information leaflets on submitting works to potential publishers. These are available from the address below:

PRS cannot undertake to put lyric writers in touch with composers, or vice versa, or to assist in obtaining publication of works, but the British Academy of Songwriters, Composers and Authors may be able to help, their address is:

PRS is not concerned with mechanical right royalties, i.e. royalties paid by record manufacturers for the right to record copyright works. For further information about mechanical rights and royalties see the section on mechanical rights.

Control over, and the collection of money from the performance of copyright works is vested in PRS. PRS grants licences for the performance of copyright works publicly in the UK, for which fees are paid to it. PRS then accounts to the composer and publisher for their respective shares of income collected by it, after deducting its administrative charge.

If the composer does not have a publisher, and is not a member of PRS, but owns the copyright in the music, he/she also owns the performing rights in it. The non-member artiste is faced with the impossible task of collecting the money from the performance of works, or preventing them from being performed without their consent. If a composer is not a PRS member, but has a publisher who is, the publisher can protect his/her rights and collect his/her share of the performing fees until he/she is eligible for membership.

PRS is affiliated to other world-wide performing rights societies, and through them it collects performance income arising within their respective territories in respect of compositions owned by its members. The composer does not have to rely on the honesty or existence of the publisher of the composition for the collection and payment of the performance income. PRS accounting records can be a useful indication of the popularity of a record, although there can be 'airplay' hits which for some reason do not sell well as records. If there is a significant discrepancy between PRS figures for a country, and a local record company's sales accounting, it may be time to audit the record company if there is no reasonable explanation for the difference.

PRS accounts half-yearly, and there is a time lag between performance income being collected by the society situated in a foreign country; that society accounting to PRS, and then PRS accounting to the composer in the UK. If, for example, the major part of the performer's income arises in the USA by way of record sales and performances it would speed up the collection/payment process of the USA performance income if the artiste became a member of one of the American collection societies, ASCAP and BMI. For an English composer this is not encouraged by PRS, as the publisher's share will be under PRS control, while the composer's share will be under ASCAPs control, which is not administratively tidy. The composer cannot belong to both societies at the same time. PRS would then receive from the USA only the publisher's share of performance income arising in the USA on that composer's work, except in the UK when it would account to the USA for it.

The collection of performance money is not an exact science, except where specific detailed returns are given to PRS setting out broadcast programme content by composition. The charges levied by PRS upon those who perform copyright music under a PRS licence will not always be allocated in detail to specific compositions. Examples are the 'blanket' license granted to most small users, such as shops and restaurants, in return for a fee in accordance with the appropriate tariff then applied by PRS.

Membership and admission categories for PRS

Writers, Composers and lyricists

For people who write the music and/or the lyrics to songs admission to membership is only allowed if;

Alternatively to this a writer can become a member if;

Applications must be accompanied by suitable evidence such as a copy of the record or sheet music, or a printed concert programme. In the case of public performance, where there is no evidence on a printed programme that a performance has taken place, some other form of corroboration will be required, e.g. a copy of the engagement contract. Every applicant must also submit a birth certificate.

Publishers

A catalogue of 15 works of which at least 10 have been commercially published or commercially recorded.

In addition;

A copy of the record or sheet music must be submitted in support of the application; copies of all assignments between the applicants and the writers in respect of the works concerned must also be supplied. Individual applicants must also submit a birth certificate.

Admission Fees

Admission for writers is £50 pounds, and for publishers it is £250 pounds - both exclusive of VAT. This is refunded if application to PRS is unsuccessful. If a newly admitted member fails to return to the society the Deed of Assignment duly executed within one year from the date of admission, the membership will be terminated and the admission fee forfeited.

Termination of Membership

Provisional writer members will be terminated if no royalties at all are credited to the writer over a three year period, and the membership of provisional publisher members whose royalties have not exceeded an aggregate of £250 pounds over 3 years will also be terminated.

How and when PRS distributes the money

Pools and Sections

Royalties from broadcasting are kept separate from other royalties, for example those coming from clubs, restaurants and bars. Hence 'Broadcasting Royalties' and 'General Performance Royalties'. These are further divided into sections which relate to specific sources, for example BBC network radio, BBC TV, commercial local radio, etc.

Obtaining programme details from licensees

PRS obtains from broadcasters, and selected other music users licensed by PRS, programme details of the music which has been broadcast or publicly performed.

Generally speaking, broadcasting stations in the UK submit complete returns of all music used. Exceptions to this are local radio stations which can submit sample returns in respect of broadcasts which have taken place using 'stock' records. However, they must supply returns of all music which is broadcast live from the studio or from an outside event. PRS randomly monitors all radio and TV stations to check against returns submitted.

Live Performance

UK live music income (public performance) requires programmes to be submitted by licensees only in respect of;

(a) Live performances at approx 440 selected 'significant' venues and 60 major music festivals in the UK, Channel Islands and the Isle of Man.

(b) Concerts and tours generating a PRS royalty of £500 or more.

Each venue has to provide details of the music performed at all live events licensed under PRS which take place in the main auditorium.

Recorded Performances

Royalties for most performances are distributed by reference to statistical data obtained from sources other than the licencees, eg charts etc.

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