Playing music in your business in Australia: licences explained

A streaming account is not a business licence

A paid streaming subscription, a video platform, or CDs and downloads you have bought give you access to music for your own listening. They do not give you permission to play that music to customers or staff. The terms of the large consumer streaming services limit use to personal, non-commercial purposes, so a household account used to provide music in a café, salon or shop falls outside what you signed up for.

Owning a copy is also different from owning the rights. Under the Copyright Act 1968, performing a song in public and causing a sound recording to be heard in public are acts that only the copyright owner may do or authorise. Once music is played in a café, restaurant, shop, hotel lobby or gym, that permission is generally needed.

Radio and television are a partial special case. The Act provides that playing a broadcast in public does not infringe the copyright in the sound recordings it contains, but the songs themselves remain protected. Permission for the musical works is therefore still generally required when a radio or TV plays in your business.

What Australian law says

The relevant law is the Copyright Act 1968 (Cth), a federal law that applies in every state and territory.

• Section 31 gives the owner of copyright in a musical work, and in its lyrics, the exclusive right to perform it in public and to communicate it to the public.
• Section 85 gives the owner of copyright in a sound recording the exclusive right to cause the recording to be heard in public.
• Sections 36 and 101 provide that anyone who does one of these acts without the owner's licence, or authorises someone else to do it, infringes copyright. On authorisation, a court looks at the business's power to prevent the act, its relationship with the person who did it, and whether it took reasonable steps to avoid it, which matters for music played by staff, DJs or hirers.
• A few narrow exceptions apply to sound recordings only, for example recordings played as an amenity provided exclusively for residents of premises where people live or sleep, or for a registered charity (section 106). They do not extend to the songs and do not suit ordinary customer areas.

Most commercial music is licensed collectively, by organisations acting for large numbers of rights holders. The Act calls their standard terms and tariffs licence schemes. Oversight comes from the Copyright Tribunal of Australia, an independent body established under Part VI of the Act and supported by the Federal Court. A licensor can refer a proposed scheme to the Tribunal, and a business, or an organisation representing businesses, can apply to it if a licence is refused or if a scheme's charges or conditions are not reasonable in its case (sections 154 to 157). The Tribunal can confirm or vary a scheme, or substitute another. The Australian Competition and Consumer Commission can ask to join, and the Tribunal must consider the Commission's guidelines if a party requests it (sections 157A and 157B).

Two separate rights in most recorded music

A piece of recorded music usually carries two distinct sets of rights:

• The musical work and lyrics, which belong to the songwriters, composers and music publishers.
• The sound recording, which belongs to its maker, usually a record label. Under the Act, the performers on a recording of a performance can also be among its makers, unless an employment arrangement or an agreement provides otherwise.

In Australia these rights are handled by two separate collecting organisations: one representing songwriters, composers and music publishers, which works alongside an affiliated body for reproduction rights, and one representing record labels and recording artists.

For most businesses, the two have offered a single joint licence since 2019. You deal with one point of contact and hold one licence, but both sets of rights are still being licensed and the fee reflects both. The joint licence covers the music in the repertoire the organisations control, which they describe as the vast majority of commercially released music worldwide.

Copying music onto a device or system, for example building a library of files for a background music player, involves the separate reproduction right. Some joint licence categories include a limited allowance for this; if unsure, ask for confirmation in writing.

How the fee is worked out

There is no single price for playing music in an Australian business. The joint licence is organised into schemes by industry, such as retail and service providers, dining, fitness, accommodation, and hotels, pubs and bars, each with its own rate structure. The main factors are:

• Type of business and how music is used. Background music is charged differently from featured music, music in fitness classes, live performances or music videos on screens.
• Size. Depending on the scheme, this is the floor area in square metres where music can be heard (shops and service businesses), the number of seats inside and outside (cafés and restaurants), the number of classes (fitness), or licensed capacity or attendance (bars and nightlife).
• Music source and number of devices. Rates differ for radio or TV only, for a single device, or for any number of devices playing streamed, downloaded or physical music.
• Days of operation and extras. Some schemes reduce the rate for venues open only part of the year, and add charges for extras such as car parks, telephone on hold, staff-only areas or website use.

Licences run for a yearly licence period and the published rates are indexed to the Consumer Price Index each year, currently from 1 September. The published terms also provide for an adjustment where a business does not use one of the two sets of rights, or holds a direct licence for part of its music, so it pays to declare accurately what you play. Some uses, such as larger ticketed events, are licensed separately. For an accurate figure, ask for a written quote based on the actual details of your premises.

If music is played without permission

Playing music in public without the necessary permission infringes copyright. Under section 115 of the Act, the copyright owner can bring a civil action, and the court can grant:

• An injunction ordering the business to stop.
• Damages or an account of profits. In music cases, compensatory damages have been assessed by reference to the licence fees that would have been payable.
• Additional damages, where the court considers it proper having regard to factors such as the flagrancy of the infringement, the need to deter similar infringements, the business's conduct after being told of the alleged infringement, and any benefit it gained.

In one Federal Court case, a fitness centre operator that kept playing music in classes without a licence after repeated letters was ordered to pay damages based on the unpaid fees, additional damages and costs. In another, a venue was found to have authorised infringing performances by people hiring it, and a director who had been put on notice was held personally liable.

The Act also helps a rights holder prove its case. In an infringement action, copyright is presumed to exist, and the claimant is presumed to own it, unless the business puts those points in issue (section 126).

There are criminal offences as well. Under sections 132AN and 132AO, causing a musical work to be performed, or a sound recording to be heard, in public at a place of public entertainment is an offence where this infringes copyright, including where the person is negligent about that fact. Penalties include fines and, in some cases, imprisonment. Whether particular premises count as a place of public entertainment depends on the facts.

Finally, a licence only covers what it describes. A background music licence does not automatically extend to classes, live performances or events, and once it ends, further use is unlicensed.

How a directly licensed catalogue works

Collective licensing is not the only route. Under sections 36 and 101, the question is whether you have the licence of the copyright owner. Where one company owns or controls both the musical works and the sound recordings in a catalogue, it can grant that permission itself. This is usually called direct licensing. The joint licence's own published materials mention direct arrangements with copyright owners, and music outside its repertoire, as other options.

A direct licence covers what its terms say it covers. Typically that means the tracks in the provider's catalogue, played through the provider's service, at the venues named in the licence, while the subscription is active. It does not cover:

• radio or television switched on in the venue;
• live music, DJs or karaoke;
• your own playlists, a staff member's phone or another streaming service;
• commercial music used for fitness classes, events or functions.

If any of these are also used on your premises, they need their own permission, which may mean a collective licence for that part of your music use.

The Act also contains a provision specific to published sound recordings (section 108). A person may cause a published recording to be heard in public by paying the owner of the copyright in that recording an agreed amount or, failing agreement, by undertaking in writing to pay what the Copyright Tribunal determines to be equitable remuneration. Any payment under this provision is owed to the owner of the recording concerned. With any provider, it is reasonable to ask who owns the recordings and compositions in its catalogue and how this is handled.

Keep your paperwork in order: given the presumptions in section 126, your records are how you show where your music comes from. Hold on to the licence certificate for each venue, the provider's details, information identifying the catalogue (for example a track list or catalogue numbers) and the dates the service was in use.

How Mublic works

Mublic is a background music service for cafés, restaurants, shops, hotels and gyms. The catalogue was produced by Mublic and is not part of any collecting organisation's repertoire, and the licence to play it in your venue is included in the subscription.

• Music suited to your sector. Programs are put together for each type of business, and the atmosphere changes through the day, from quieter mornings to busier evenings.
• Separate zones. Each area of a venue, such as the dining room, terrace or bar, can play its own program independently.
• Keeps playing offline. Tracks are downloaded in advance, so music continues if the internet connection drops.
• A certificate for every venue. With a paid subscription, each venue receives a licence certificate that can be verified by QR code.
• In-store announcements. Short announcements, such as offers or closing times, can be scheduled between tracks.
• Free trial. You can try the service for 7 days without entering a card. The trial is for trying the service; the licence certificate is issued once a paid subscription starts.

The licence covers only the Mublic catalogue. Radio, television, live music or another music service playing in the venue falls outside it.

You can start a free trial, see the pricing, or set up your venue.