Responding to Public Performance and Ground Licensing Notices

Today, most discussions around modern entertainment licensing revolve around digital licensing, brand extension, merchandizing and community licensing. But, not much has been discussed by scholars about the emergence and the growth of ground licensing of public performance rights. For a long time, enforcement of public performance rights on the ground was limited to popular events, and record labels turned a blind eye to other use of sound recordings, lyrics and music compositions. However, that is fast changing now. From a copyright and entertainment attorney’s perspective, the change can be attributed to Novex Communications, a privately held entity and registered copyright societies such as IPRS and PPL. Through their actions, these organisations have been changing the outlook and apathy of businesses and the general public towards ground licensing of performances.
Though legal validity of Novex’s business model is questionable, the company has made inroads into sectors that were earlier not used to acquiring licenses for public performances. With its efforts to license works to restaurants, clubs and pubs succeeding, it has now set its eyes on corporate events, institutes, star hotels, and others. Novex’s strategy seems to be quite similar to the one followed in the consumer software space, where companies have achieved great success by sending licensing and legal notices to thousands of targeted companies and individuals. Even if a small percentage of them acquire licenses, Novex has a lot to gain. The licensee then becomes a long term business partner of Novex.
Though the strategy has helped in spreading copyright awareness and the need to acquire licenses for public performances, Novex’s eagerness to close as many licensing deals as possible and its belief that every use of the work is licensable has now set off a movement against Novex on social media and business circles. Several uses of sound recordings, lyrics and music compositions do not give rise to copyright infringement, and a license is not required under the said circumstances. The list of such uses and circumstances is much broader than Novex’s perception, and merely using a copyrighted work in an educational institution, private party, social gathering, and so on does not warrant a license. The same is true with certain public events, live performances and entertainment activities. Despite the aforestated, Novex’s persistence and insistence has now become a cause of business interference and annoyance.
Handling Novex’s notices has now started costing companies and individuals, and a sense of panic is noticeable. This is fortified by the fact that Novex’s representatives somehow manage to get into their events and record some of their proceedings, which may not always be legal. The uncertainty with respect to the best way to respond to the notice adds to their troubles.
From a copyright and entertainment attorney’s perspective, the issue is not so complicated though. All one needs to do is understand what is being claimed in the notice and analyse its implications:
Which work has been infringed?;
In what way, or by what use?;
Who owns the work?;
Does Novex or IPRS have the rights to license it?;
Is the use of the work infringing?;
Is a license truly required?; and
What is the cost/consequence of licensing vs. resisting?
Once the facts are ascertained and evidence reviewed, a simple analysis by an informed mind will help in deciding what options are available, and what must be done. One may not be required to pay anything to Novex, and even if one has to pay, it may not be for everything being claimed. However, if the use was infringing, there is no point in denying the possibility of acquiring a license.
Note: This post was authored by the copyright and entertainment law department of BananaIP Counsels. If you have any questions about the contents of this notice, you may write to [email protected] with the subject: ground licensing.
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