White (Christmas) noise: copyright and those Christmas tunes

While there in the background all year round, as retailers enter into their ever-earlier Christmas season, background music in shops suddenly appears much more obvious as shoppers are bombarded with Christmas carols and songs as they go from shop to shop, perhaps feeling sorry for the poor sales assistants who will hear the same tunes blared out not once, not twice, but several times each day.

Not many of us will think about the legal issues arising from this part of their shopping experience. But playing music to shoppers, or indeed the customer of any business, is a public performance of the recording like any other and the fact that no-one is charged to listen to it is no excuse.

The laws of copyright

All recordings of music are protected by copyright which generally lasts for 70 years from the date of recording – to put that into perspective, its only recordings from just after the end of the Second World War which are now no longer in copyright – so while Bing Crosby’s “White Christmas” from the film “Holiday Inn” dates from 1942 and so is no longer in copyright, “Frosty the Snowman” still has a few years to run, first being recorded in 1950 (with Rudolph only a year ahead).

Even Christmas carols, with many dating back to Victorian times, can still be caught by copyright laws as it is the time from the individual recording, not when the song was written, which is relevant. So while a live performance of Jingle Bells (originally titled The One Horse Open Sleigh and written in 1857) would be permitted, a broadcast any recording of it made in the last 70 years would still infringe the copyright in the recording itself.

Most songwriters and publishers have their rights administered in the UK through the organisation the Performing Rights Society, which acts as the agent of a copyright owner to police and enforce copyright, but also to grant appropriate licences for use of the copyright materials. The task facing individual copyright owners trying to control their rights, collect royalties and give permissions would be a logistical nightmare not only for the owners themselves, but also for those wishing to use copyright works in having to track down and contact individual owners.

Who needs a licence?

Licences are therefore required for any form of public performance of recordings and as mentioned above it’s no excuse that there is no charge and it is simply seen as background music to “entertain” your customers or others. It covers any broadcast of a recording for customers or staff however broadcast – through radio, TV, CD or over the internet – and so even having the radio on in the background applies.

The PRS has some discretionary policies where no licence fees are payable which covers, for example:-

• Residential homes for the elderly where background music regarded as “normal domestic use” is permitted
• Music used in church services
• Private family events where attendance of guests is by invitation only, the function is in a privately-booked room, no charges are made for admission and there is no financial gain for the organiser

While there are other discretionary policies which apply, other use would still be an infringement of copyright and office Christmas parties are not exempt.

In this age of instant access, there is often an assumption that anything which may be available to download must therefore be free to use. But for all music and other sound recordings that is only the case where the source site is properly authorised to license use. Private use may be permitted in terms of such sites, but wider use generally will not be.

Despite the huge surge in online shopping, High Street shops will still be busy over the Christmas period – and so there is no way of avoiding Christmas background music. Shoppers, dependent upon their stress levels, may see it as a distraction, entertainment or annoyance. But for businesses using music in the background, it is important for them to make sure they are properly authorised to do so. The last Christmas present they want is an unexpected demand for licence fees and a potential court writ.