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Do you have the right to play the music you’re playing?

Published: 6th June 2019

Author: Jess Collett, Norris Ward McKinnon

Published in: Commercial eSpeaking

Do you have the right to play the music you’re playing?

A 2018 High Court decision (1) has shown you should consider your right to use a third party’s intellectual property, such as playing music in the course of your business operations.

If you use music or play the radio in a business or public setting that is considered a ‘public performance’ you could be contravening a provision in the Copyright Act 1994. This includes playing music and/or radio broadcasts in any commercial environment, such as a café, restaurant, bar, shop or factory.

In December 2018, The Rock Salt Bar & Restaurant at Kerikeri was ordered by the High Court to pay $4,605 in damages and $18,000 in additional damages for failing to obtain a licence to play music in the course of its business. In this instance, The Rock Salt Bar & Restaurant was found to have infringed copyright of the Australasian Performing Right Association (APRA), and ignored requests to stop using such copyright until they obtained an applicable licence. A licence to use the copyright was offered to The Rock Salt Bar & Restaurant by APRA a number of times in 2017 and 2018, but the offer was ignored.

In his judgment, Justice Palmer noted that he awarded the additional damages of $18,000 on the basis of ‘the flagrancy of the breach, the importance of the music as a reason for customers’ attendance over a significant period of time and contempt towards the copyright regime indicated by the defendants’ behaviour’.

This case goes to show that if you’re a business owner, you must consider whether you have a right to use third party intellectual property rights in all aspects of your business. Otherwise you could be exposing your business to unnecessary financial risk.

(1)  Australasian Performing Right Association Ltd v 3228 Business Ltd [2018] NZHC 3088.

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