IMRO threatening legal action

fintan_b

Hi All,

If an individual in a private company not open to the public, listens to the radio privately. During outside phone calls, does the fact that a member of the public can overhear a radio being played for the private enjoyment of an individual constitute "music being played to the public"?
Does it matter that the individual with the radio is playing it in the course of their employment?

Searching online I found an article from Dentists who took an action to the European Union Court of Justice who found the following (Judgment in Case C-135/10):
A dentist who broadcasts phonograms free of charge in his private dental practice is not making a ‘communication to the public’ within the meaning of EU law
Such broadcasting does not, therefore, give rise to a right to remuneration for phonogram producers

Thanks for looking,
Fintan

Pat Mustard

Mod note:

The fact that the OP has mentioned a specific instance as opposed to a hypothetical example means that discussion must be curtailed, in order to comply with boards.ie rules and the forum charter.

There is no difficulty with discussion of the law in general.

However, legal advice is not allowed. Therefore, discussion cannot cover the liability of the OP or advice to the OP, apart from practical advice.

If the above restrictions are not observed, this thread will be closed immediately.

Grolschevik

So I suppose the discussion needs to be framed along the lines of:

Does the fact that a member of the public can overhear a radio being played for the private enjoyment of an individual constitute "music being played to the public"?

Does it matter that the individual with the radio is playing it during the hours of their employment?

Would IMRO attempt to argue this line in the case of a passerby outside your kitchen window?

deandean

OK this might be going somewhere. So boy racer pulls up beside me at the lights in his car with the windows down and the rap music volume up at 11, let's say 10 motorists can hear him.

Maybe this is broadcasting to the public and boy racer can be reported to the IMRO and fined? Win-win situation

coylemj

deandean wrote: »

OK this might be going somewhere. So boy racer pulls up beside me at the lights in his car with the windows down and the rap music volume up at 11, let's say 10 motorists can hear him.

That's a private motorist being a dick - what about someone driving a commercial vehicle with a loud radio and which members of the public can hear - an An Post or DHL delivery driver for example?

Or what about a driver playing a radio in the cab of the 46A which a lot of the passengers can hear?

uck51js9zml2yt

coylemj wrote: »

Or what about a driver playing a radio in the cab of the 46A which a lot of the passengers can hear?

Wasn't that banned due to health and safety considerations?

Fred Swanson

This post has been deleted.

When I get the Bus Eireann bus, the radio is generally on for everyone to hear. When I get in a taxi, most times the driver has the radio on.
I was in the dentist a few days ago and the radio was on in the Surgery. My doctor even has the radio on in his waiting room. I could go on and on. It's not talk radio either, most of the time it's music.

Losty Dublin

The limited experience that I have with IMRO and how they operate is as follows.

They may assess a premise for their playing of radios or TV's or media devices or whatever form of media that can think of and come up with a figure of people that may be exposed to such media; they have a guess at your gross income and then make an assessment of a royalty which they feel is owed by you. More often than not the figure that they feel your workplace owes is based on information that they've plucked from the sky. The fact that a premise isn't assessable to the public doesn't affect the fact that any business premise or vehicle needs a licence. What it will have some effect on is how many people are listening in and for how long and under what context. Say for example, your small office should only have to pay a fraction of what a Golden Discs shop pays or the likes of Whelan's of Wexford Street.

In the case that OP alludes to, you should bear in mind that there is more than IMRO to deal with when it comes to playing music or any sort of media in public. You also have the PPI and the MCPSI to contend with. In general, in public means any place that isn't in your home or car or on your personal musical device. Even if it's Newstalk or Joe Duffy you listen to, there is still a liability to address Now if it's your home radio then it's not liable but if you work from home then you are due.

I would suggest that you contact IMRO or the PPI or MSCPI and make a representation to them to reassess any invoices that they may send to your workplace. They usually work off duff information so if the bill is wrong then it can be adjusted to a more sensible rate for your operation

ZeroThreat

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Losty Dublin

ZeroThreat wrote: »

So, say a company employee in credit control who works part time from home for a small business and makes some calls to debtors is billed by IMRO?

Also, what if a workplace has no TV or radio, would the fact there are PCs on the premises make them liable to be charged by IMRO?

Both cases are theoretically reckonable, yes. In practical terms however, it's unlikely that they will see a bill unless IMRO come and visit

ZeroThreat

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Pat Mustard

I did a google of "IMRO case" and the following were among the results:

http://radiotoday.ie/2014/07/radio-nova-in-court-over-imro-breach-claim/
http://www.independent.ie/irish-news/courts/nightclub-owner-avoids-jail-over-failure-to-pay-music-royalties-30411956.html
http://www.limerickpost.ie/2014/02/05/limerick-bar-out-of-tune-over-music-royalties/
http://www.limerickleader.ie/news/local-news/144986/IMRO-secures-injunction-against-Limerick-pub.html

It appears to me that the common denominator of these cases lies with IMRO taking action for breach of a licensing agreement between a licenceholder (pub/club) and IMRO by way of non payment of licensing fees to IMRO. Certain clubs and pubs may have Dancing/Singing/Music licences but these cases do not appear to refer to such licences, rather licence agreements with IMRO.

I am subject to correction here but I have yet to become aware one case of IMRO bringing somebody who operates an ordinary hardware business (for instance) to court for use of a radio in the staff room.

The question that I have is as follows:
1. if you are a small business and
2. if your staff play a radio in a back room and
3. if you do not have a licence agreement with IMRO,
What can IMRO do to you?

Little CuChulainn

They could be just taking the YouTube approach. Throw as many claims as possible at people and hope some of them pay.

Pat Mustard

Little CuChulainn wrote: »

They could be just taking the YouTube approach. Throw as many claims as possible at people and hope some of them pay.

And the other side of it is that some people will listen the sales pitch from the IMRO guy, figure that they have to pay, and agree to sign up to a licence agreement.

Once somebody enters into a contract with them, it's a horse of a different colour.

Mr. Incognito

background noise is not broadcasting.

For starters its a private telephone call communicated to one person.

I dont need to look it up

The argument is ridiculous. I'd be sending a letter telling them politely to F off.

doublej

Both IMRO and PPI are old hands at extracting fees from businesses.

There is a clear distinction, one that was at the core of the ECJ "Dentist" case between a user of a radio primarily for their own enjoyment and a user that actively uses the content to create an ambience or provide a level of enjoyment to "the public", and by so doing, derives a benefit from such action.
Licensed premises that hire acts to play music to patrons or shopping centres that play music that is copyrighted are very different commercial entities from staff canteens or a newsagents yet until the Department of Jobs etc directs the Controller of Patents to seek from IMRO/PPI a justification on why, despite a clear and binding legal judgement from ECJ, they continue their policy of collecting from entities that clearly do not play music to the public for profit, the scandal will continue.
A shoe shop in Grafton Street won a case in the District Court in the past two years using the ECJ argument

Fred Swanson

This post has been deleted.

doublej

Can't say for certain about IMRO but PPI most certainly do; the tariffs range from €98.57 to €197.16 per annum for retail outlets with 1-150 sq metres in which the sound recording is audible.
IMRO charges €216.20-€321.17 for 1st year and €143.93-€214.09 in subsequent years for 1-200 sq M stores.

The retailer facing a bill of €400/€500 would need a well briefed lawyer to challenge PPI in District Court and be prepared to face an Appeal also.
Most pay up

emeldc

Mr. Incognito wrote: »

background noise is not broadcasting.

For starters its a private telephone call communicated to one person.

I dont need to look it up

The argument is ridiculous. I'd be sending a letter telling them politely to F off.

This. Although I'd be less polite :rolleyes:

Fred Swanson

This post has been deleted.

Pat Mustard

doublej wrote: »

A shoe shop in Grafton Street won a case in the District Court in the past two years using the ECJ argument

Link to Irish Times article

PPI sued Patrick Burke Shoes Ltd, which runs shoe shops on Talbot Street and in Donaghmede Shopping Centre in Dublin, for €2,045 in unpaid royalty invoices and €6,348 in aggravated damages.

PPI staff had visited the shops and heard artists recorded by their client companies being played on the radio. The organisation subsequently invoiced the company for royalties on behalf of its members. The company defended the claim and its lawyers, Michael Nuding and Jennifer Heffernan of Denis I Finn Solicitors, argued in Dublin District Court that PPI was not entitled to collect royalties. They relied on two European Court of Justice (ECJ) cases that dealt with key terms in the law such as “communicated to the public” and whether the music was being played for profit.

European cases
The first was an action by the PPI where the organisation succeeded in getting the court to overturn an exemption for hotels in Irish law covering music broadcasts to guests’ bedrooms. The second was where the ECJ found against the Italian equivalent of the PPI which had pursued a dentist, Marco Del Corso of Turin, whose practice had a radio playing in its reception area.

Judge Mary Collins accepted Mr Nuding’s and Ms Heffernan’s arguments that Patrick Burke Shoes was similar to the dentist in that only small numbers of people were hearing the music at any one time.

In addition, the shops were not playing the music for profit and it was not a factor in influencing whether or not people entered the stores in the first place.

Judge Collins dismissed the PPI’s claim and ordered it to pay the company’s costs.