This month in summary
The Motion Picture Licensing Company (MPLC) has recently announced that it is proposing a tariff for TV's in hotel and letting rooms.
MPLC is an organisation that represents the copyright interests of various film and television production companies and is authorised to collect fees on their behalf for the public broadcast of the content they produce.
A ruling in the Courts that hotel rooms are public places and therefore PRS and PPL must be paid where music is provided - including incidental music as part of television programmes - is being used by MPLC in order to justify their proposed charges.
As things stand, the new charge has not yet come into force and MPLC are negotiating with industry bodies on the likely fees and when it should be introduced. The proposal is for a blanket charge on an annual basis based on the number of letting rooms available, with a proposed charge per 15 bedrooms of £106.20. This, of course, may change depending on the negotiations. Industry bodies involved in lobbying for their members have been seeking member views on the impact this would have on businesses.
MPLC announced themselves to pubs, clubs and other licensed premises in 2016 with a robust letter insisting that any premises showing television in their premises must pay them for the right to do so. This followed changes to the Copyright Act 1998 that came into force in 2015 and made collection on behalf of rights holders easier.
However, on investigating the matter further, it was clear that after discounting live TV broadcast, such as live sports, rolling news and music video channels, which were not subject to these copyright controls, MPLC only had a limited right to collect on behalf of the production companies that they actually represented.
For most premises not showing television programmes outside of live sport or news, there was no need to pay; likewise for premises that did not show non-MPLC client films and television programmes, MPLC had no right to collect. Having said that, the issue has always been for whom do they work and therefore what programmes can they collect for showing. For letting rooms, the problem is that guests have control over what is shown. Given that most letting rooms are expected to have TV as a matter of course, it is much more likely that such charges can be fairly levied.
As of yet, there is no fixed date for introduction and no agreed fee level. However, given that this is adding another cost to the existing PRS/ PPL cost associated with letting rooms with TVs, we can expect a flurry of letters from MPLC to all premises with rooms, be they hotels, B&Bs or pubs with a couple of rooms above the bar.
2018 and 2019 will see a flurry of consultations on licensing polices, along with the first Cumulative Impact Assessments, following changes to the law on cumulative impact zones.
Licensing authorities are bound by law to review their licensing polices at least every five years and this year and next are expected to see a significant number of consultations across the country. In addition, the introduction of Cumulative Impact Assessments on a rolling three year basis, requiring licensing authorities to consult on cumulative impact separately, will see councils dipping their toes into this new requirement for the first time.
The reality is that licensing policies in the main fall into two groups: those that recite what is required of them based on the Guidance; and those where councils actively seek to mould their licensing function through a comprehensive policy. For the policies in the first group, little will change. They are less likely to have introduced cumulative impact zones and tend to be happy dealing with each application on its merits. It has always been the second group that has presented more of a challenge (or helpful guide, depending on your point of view) for applicants in those areas.
Council licensing committees as they sit down to conduct their reviews will find that changes to the law and guidance means that council have an increasingly large and exotic smorgasbord of delicacies they can pick and choose from for their policies. Recent guidance changes have included express mention of "fixed closing times, staggered closing times and zoning", as possible means of regulating licences in policy areas and whilst to date we have seen little use of these tools, they are likely to gain in popularity this time around.
As such, these policy consultations are the only opportunity for up to five years where operators get to have their say about how local licensing authorities propose to regulate licence holders. This is important as policy writers don't necessarily understand what it is like to operate premises on a day-to-day basis and indeed what effect cultural changes have on the public using licensed premises. Having a voice and using it is increasingly important, if only for policy makers to understand that the operators care enough to engage in the process and have a compelling story to tell.
We wait to see how cumulative impact assessments are drafted and how much engagement authorities have with parties affected by cumulative impact. With any luck, the process itself will push local authorities to consider the effect that existing cumulative impact policies have on their local areas. However, to be of any real value, the input of those trading within cumulative impact areas, as well as applicants to have struggled to either obtain licences or vary existing licences, will be important in giving context to the debate. You can be sure local residents and police will be voicing their opinions!
Both policies require consultation and that consultation should be advertised to parties with an interest, including licence holders. Even a brief response to lodge a couple of key concerns is worth the time, even if you cannot engage in a longer response on all points.
A friend and licensee recently told me that they had been checking diligently every night to ensure music would not cause a disturbance to his nearest neighbour. "All well and good", I said, 'but do you have records that you have carried out these checks?"
"Why should I?" was his curt response. Put simply, he had a neighbour who, by all accounts was out to find fault with not just the pub, but various local enterprises he had decided were bringing his house prices down. As such, he had been complaining to the EHO about music disturbing him.
"You can hear it outside the pub when someone opens the door," my friend said, 'but I know it's not loud enough to disturb him."
"'Whose word would a committee believe?" I asked. "And why would you rely on word alone when you are carrying out the checks anyway?"
"Because it’s a pain", he responded.
"Keep a record," I said. "Even better take a short recording outside his house on your phone. 15 seconds… preceded it with a narrative of time, date and where you are standing. That's all you need to do. That way the environmental protection team can get evidence directly from you that you are not causing a disturbance."
"I suppose it makes sense," he responded, doubt tinging his every word, "but it's such a pain…"
"Less of a pain than a licence review!" I interrupted.
DCMS has launched a consultation looking at whether society lotteries, defined as lotteries promoted for the benefit of a non-commercial society, should be able to raise more money annually than currently allowed by statutory limits.
Society lotteries play a vital part in enabling charities and other societies, such as sports clubs, to run lotteries for good causes. Currently, the amount a society can raise is subject to limits of £4m sales per draw, £10m sales per year and a maximum prize of £400,000.
The preferred option that DCMS is consulting on is for a tenfold increase in the amount that a large society lottery can raise per year, bringing the annual limit to £100m. The per draw sales limit would rise to £5m and the maximum prize to £500,000.
Consultation closes on 7 September 2018. Find full details here
The Gambling Commission has published its latest report into enforcement over the past year, suggesting that operators need to pay attention to the findings.
The key message from Neil McArthur, Chief Executive of the GC is:
"We want operators to pay attention to the lessons set out in this document. We want them to focus on ways to make gambling fairer and safer for consumers in Great Britain. We also want operators to collaborate and invest the same amount of resource, technology and research into building better protections for consumers, as they do to creating new products, or advertising and marketing campaigns."
This follows from the recent warnings and spate of heavy fines for operators found to be breaching their obligations, in particular to protect vulnerable consumers and prevent money laundering. The full report can be found here.
June has been a busy month for hearings and meetings around the country. We have been involved in various hearings and client meetings in Cambridge, Bristol, London, Cardiff, Rickmansworth and Shrewsbury, to name a few. In addition, we have attended various meetings of the Institute of Licensing, BII and given presentations at Nightwatch in Bristol and at various events, both local and national.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.
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