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Legal Eagle

Licensing

Q: Performance licences and school productions

Do schools need to apply for performance rights/ licences when performing a school production of a published playwright?

A: The law is very specific on this point. The performance of a literary, dramatic or musical work in public is an act restricted by copyright.

However, Section 34 of the Copyright Designs and Patents Act 1988 creates a specific exception to the following effect. The performance of a literary, dramatic or musical work before an audience consisting of teachers and pupils at an educational establishment and before other persons directly connected with the activities of the establishment (such as school governors or non-teaching staff), by a teacher or pupil, in the course of the activities of the establishment, or at the establishment by any person for the purposes of instruction, is not a public performance for the purposes of infringement of copyright.

The same applies to the playing or showing of a sound recording, film or broadcast before such an audience at an educational establishment for the purposes of instruction.

'Educational establishment' is defined to include schools and certain institutions of higher education. The expressions 'teacher' and 'pupil' are defined as any person who gives or receives instruction respectively.

However, it is important to note that a person is not for this purpose directly connected with the activities of the educational establishment simply because that person is a parent of a pupil at the establishment concerned.

This means that if parents generally are invited to the performance or even just the parents of performers the exception under Section 34 will not apply.

On the other hand if one or only a few parents are present for particular reasons, eg to help with stage management or refreshments or safety regulations or whatever, as distinct from being just spectators, that will not prevent the exception applying.

Section 34 does not mean that if anyone not directly connected with the activities of the establishment is present the performance will automatically be categorised as a public one. Where Section 34 does not apply one must look at all the circumstances in order to determine whether the performance is a public or private one, and the precise boundary line may not always be clear.

If tickets are made available (whether free or for purchase) to members of the public at large or to any section of the public (such as parents generally) it will be a public performance.

Conversely if admission is restricted by private invitation to specific named individuals only (in addition to persons directly connected with the activities of the school) then arguably the performance will be a private one and a licence from the copyright owner will not be required.

If it is a public performance then a licence from the copyright owner will be required unless, of course, the particular work concerned is out of copyright by effluxion of time because 70 years have elapsed from the end of the calendar year in which the author died.

However, some published plays, though protected by copyright, carry express permission for non-profit making performances by educational establishments, even though such performances may technically be in public.

First published August 2000