The Live Music Forum

Hamish Birchall Bulletin

Thursday 6th April 2006 - Incidental exemption - contrasts

Earlier this week the City of London Corporation showed that it is possible to interpret the 'incidental music' exemption liberally.  Regular m usic concerts in wards (twice a week), waiting rooms and other public areas of hospitals as advertised by Barts Hospital need not be licensed under the new Licensing Act.

Contrast that approach with one from a local authority in the south west of England. Here is a section of their response sent this week to a local folk musician seeking clarification of the incidental music exemption:

'As you know, the Act contains no definition of "incidental" and my legal team advise me that in these cases it is normal to use dictionary definitions to aid interpretation. The dictionary definition of incidental includes the word "casual" which in our view, does impact on the regularity of incidental music. I can confirm that we would advise any licensees asking us that we would regard incidental music as that which:

'As I said in my previous letter, we have had very few issues regarding incidental music to date and we are not keen to apply "one size fits all" rules. Therefore, we will continue to consider each case on its individual facts wherever possible and to advise licensees accordingly.

' All performances of live music can take place without an audience, so it is hard to see the point of the first criterion. Advertising is not cited in the new Act as a criterion for the licensing of live music, nor is this implied; likewise the regularity of performances. In any case Barts Hospital advertised their concerts on wards, which are taking place twice a week. Amplification is allowed by the incidental exemption, which makes no distinction between live and recorded music. Where recorded music is provided, amplification is unavoidable.

My Concise Oxford Dictionary leads with this definition of 'incidental': 'Having a minor role in relation to a more important thing, event, etc'. It does not mention 'casual'.

It would seem some local authorities are just making up their own law.


Hamish Birchall