The Live Music Forum

Bulletins From Hamish Birchall


Sent: Wednesday, June 01, 2005 9:39 AM
Subject: DJs an 'embedded right'?

A Department for Culture, Media and Sport document, leaked yesterday, shows just how blatantly the government discriminates in favour of recorded or broadcast music and against live music.

Under the new licensing regime, pubs, bars, restaurants and indeed any venue that is already licensed to sell alcohol for consumption on the premises will automatically keep the 'right' to play recorded music and even have DJs, provided there is no dancing, when converting to the new 'premises licence'. The automatic right to host one or two musicians, however, introduced for such venues in 1961, is explicitly ruled out by the new Act. (See copy of DCMS text below).

Under the Licensing Act 2003, 'any playing of recorded music' intentionally provided in bars/pubs etc to entertain customers is a 'regulated entertainment', and illegal unless licensed. At first sight this looks like equal treatment for live and recorded music - but it will only apply to completely new premises licence applications.

Called 'Embedded restrictions in the Licensing Act 1964' and dated May 2005, the leaked document, aimed mainly at local authorities, sets out the DCMS interpretation of the complex transitional arrangements section of the Act. This covers certain operating conditions that may or may not be automatically carried over when converting to the new 'premises licence'. The fact that DCMS produced this document at all is an implicit acknowledgement that the Act is badly drafted.

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'It should also be noted that the term "embedded restrictions" can itself be subject to some subjective interpretation. For example, the holder of a justices' licence permitting consumption of alcohol on the premises is entitled to provide recorded music or the reproduction by wireless (including television) broadcasts without the need for a public entertainment licence. This can be viewed as an embedded right to be carried over on conversion of an existing licence to a premises licence because it amounts to a relaxation of the normal requirements. Alternatively, some may view it as a restriction because only recorded music may be provided etc. We regard this as an embedded right (save in the context of live music about which Schedule 8 makes particular provision) and therefore not relevant to discussions of embedded restrictions.'
DCMS, 'Embedded Restrictions in the Licensing Act 1964', para 4, May 2005


Hamish Birchall