- Private and voluntary nurseries not ‘educational establishments’, according to music licensing bodies
- Declaration follows years of uncertainty on legality
Music licensing bodies PPL and PRS for Music have confirmed that private and voluntary nurseries are not considered ‘educational establishments’ in the way that maintained nursery schools and schools are, so they must pay for a licence to play recorded music.
However, if early years providers use music solely for educational purposes, they only need to pay for a proportion of the licence, which is half the cost of a joint licence.
Money from licence fees goes towards royalties for performers, song-writers, composers, music publishers and record companies.
The confirmation comes after years of confusion among nurseries about whether they need a licence to play music, as schools and nursery schools are exempt under the Copyright Act.
The National Day Nurseries Association (NDNA) recently broadened its guidance on music licences, calling it a ‘grey’ area that has not yet been tested in court.
Nursery World understands that some nurseries which have challenged the music licensing bodies – by saying they are educational establishments because they deliver the EYFS and provide Government-funded places – have had their licence fee waived, while others have still been required to pay.
But PPL/PRS for Music have now confirmed that PVI nurseries cannot be counted as ‘educational establishments’ under the Copyright Act. However, if settings solely play recorded music for educational purposes, they do not need to pay for the full joint licence. The music licensing bodies came together last year to offer a joint licence at a cost of £83.50 (excluding VAT).
Childminders, however, do not need to buy a licence unless they play music in a room that has been set up specifically and exclusively for the purpose of childminding; for example, a playroom that is used only for childminding activities and not usually for family/domestic use.
A spokesperson for PPL/PRS for Music told Nursery World, ‘PPL’s position is that private, voluntary and independent (PVI) nurseries require a licence for any use of recorded music at the premises. PRS, however, choose not to charge for the use of their repertoire, if it is solely used as part of the Early Years Foundation Stage curriculum.
‘A nursery solely using music as part of the EYFS would only be liable for the PPL proportion, which costs £41.75 plus VAT.’
However, PPL/PRS for Music said nurseries need to declare all their music usage correctly. Being incorrectly licensed would be considered an infringement of copyright.
They said, ‘Both PPL and PRS charge for any use of music that is not part of the curriculum. The [licence] covers a wide variety of other music uses within nurseries, including extra-curricular dance and movement classes (for example, mummy and baby yoga), fêtes and fairs, childminding services, film and cartoon showings, extra-curricular external musicians, breakfast/holiday clubs, parent evenings/open days, general background music, such as within offices, and telephone systems’ music on hold.
‘It is likely that most nurseries will use music in one of these ways in addition to any curricular use, in which case a licence from both PPL and PRS will be required.’
The music licensing bodies said they have managers based around the UK who can arrange to visit premises to evaluate them to ensure that a business is correctly licensed.
In regard to nurseries receiving different responses from the licencing bodies’ customer service teams, PPL/PRS said it is ‘continually looking at improvement and quality assurance measures with regard to its customer service operations, and it will strive to ensure that all agents handling enquiries of this nature are suitably trained’.
Solicitor advice
IP solicitor Jessica O’Riordan from law firm Stephens Scown said it is clear from PPL/PRS’s website that nurseries are not considered to be ‘educational establishments’.
She told Nursery World, ‘Our view is that this is not a grey area and nurseries do have to pay a music licence fee to avoid any action being taken against them for copyright infringement. If nurseries do not have the appropriate licence in place then legal action could be taken against them, and dealing with this is likely to be more expensive than paying for the licence fee in the first place.
‘If nurseries have any questions about the scope of the licence then they can email our IPIT team or contact PPL/PRS directly.’
Government response
A Government spokesperson said, ‘Copyright laws exist to protect the rights of owners of creative works and it covers any performance of a work outside of a domestic, private setting.
‘There are exceptions to these rules which allow certain types of educational establishments to perform copyrighted works without a licence. [Those organisations] that are unsure of the relevance of these exceptions and how they apply should seek legal advice.’
Legalities
According to the music licensing bodies, although private, voluntary and independent (PVI) nurseries in England and Wales are regulated by Ofsted and may provide education for children in accordance with the Early Years Foundation Stage curriculum, PVI nurseries do not fall within the definition of educational establishment in the Copyright Designs and Patents Act 1988 (CDPA).
Section 34 (‘the education exception’) of the CDPA refers to ‘educational establishments’. Section 174 of the CDPA sets out that an educational establishment is a school. Section 174(3) states that ‘school’ has the same meaning as in the relevant Education Act or establishments specified by order of the Secretary of State.
In England and Wales, the definition of school is set out in section 4 of the Education Act 1996. Section 4(1) defines schools as institutions providing certain types of education, including primary education. Section 4(1A) sets out that an institution that provides only early years provision and is not a maintained nursery school (i.e. maintained by a local authority) is not a school.
The Education Acts in Scotland and Northern Ireland do not have this provision.
