Performing Rights Societies in the United Kingdom and Ireland: Legal Framework, Case Law and Contemporary Challenges

Performing Rights Societies in the United Kingdom and Ireland: Legal Framework, Case Law and Contemporary Challenges

Introduction

Performing rights societies—also referred to as collecting societies or collective management organisations (“CMOs”)—occupy a pivotal position in the exploitation and enforcement of musical copyright and related rights in the United Kingdom and Ireland. By aggregating rights, issuing licences, collecting royalties and redistributing remuneration, these bodies provide an indispensable mechanism through which creators and other right-holders monetise their works while simultaneously enabling users to gain lawful access to extensive repertoires via a single point of contact. The ensuing analysis interrogates the statutory architecture, judicial treatment and policy debates surrounding performing rights societies, drawing on leading domestic statutes, European measures and a corpus of case law on both sides of the Irish Sea.

Historical and Legislative Context

United Kingdom

The principal legislative instrument is the Copyright, Designs and Patents Act 1988 (“CDPA”). Sections 16 and 19 confer on the copyright owner the exclusive right to “perform the work in public” and to authorise such acts. Section 182D further secures equitable remuneration for performers when commercially published sound recordings are communicated to the public. Crucially, nothing in the CDPA mandates collective administration; rather, it facilitates voluntary assignment or licensing to societies such as the Performing Right Society Ltd (“PRS”) and Phonographic Performance Ltd (“PPL”).

Ireland

In Ireland, the Copyright and Related Rights Act 2000 (“CRRA”) governs the field. Section 38 establishes a statutory licensing regime for public performance of sound recordings, while section 208 entitles performers to equitable remuneration when their performances embodied in sound recordings are publicly performed or broadcast. As the High Court confirmed in Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd (2019) (“RAAP v PPI (HC)”) the right of a collecting society to act under section 208(2) is conditional upon an actual assignment by the individual performer.[1]

European Union Influence

Directive 2014/26/EU on the Collective Management of Copyright and Related Rights (“CRM Directive”) harmonises minimum governance, transparency and right-holder choice standards. Article 3 envisages authorisation of CMOs “by law or by way of assignment, licence or any other contractual arrangement,” expressly preserving Member State discretion on whether collective management is voluntary or mandatory.[2]

Legal Status and Powers of Performing Rights Societies

Definitions

  • Collective Management Organisation (EU): Defined under Article 3 of the CRM Directive; mirrored in Ireland by Regulation 2 of S.I. No. 156/2016.
  • Licensing Body (Ireland): Section 265 CRRA describes a body whose objects include granting licences in respect of performances of more than one performer.
  • Collecting Society (UK practice): Not statutorily defined, but case law recognises entities such as PRS (composers/publishers) and PPL (record producers) as de facto societies.[3]

Acquisition of Rights

Performing rights societies may obtain rights either:

  1. Through assignment, whereby ownership of the relevant copyright incidents vests in the society (e.g., Clause 2(a) of the PRS membership agreement considered in B4U Network (Europe) Ltd v Performing Right Society Ltd (2013) (“B4U v PRS”)).[4]
  2. As agents acting on the basis of non-exclusive mandates (the prevalent model for PPL in the UK and PPI in Ireland).

Judicial Treatment of Key Issues

Assignment Versus Agency

The English courts have long upheld present assignments of future copyright interests. In Performing Right Society Ltd v B4U Network (Europe) Ltd (Ch D, 2012) Vos J held that assignment of rights “which the composer may acquire or own” is effective, rejecting arguments that only a present assignment of future works would suffice.[5]

Similarly, the Court of Appeal in B4U v PRS confirmed that, once the composers had acquired fresh copyrights under Indian law, those rights vested automatically in PRS pursuant to the earlier assignment.[4]

Conditions for Collective Entitlement

The Irish High Court in RAAP v PPI (HC) emphasised the protective policy embedded in section 208: unless performers positively assign their remuneration right to RAAP, the society lacks standing to collect.[1] The Court expressly declined to imply any statutory presumptions in favour of CMOs, underscoring the performer’s autonomy that is also championed in Recital 2 CRM Directive.

On appeal, the Court of Appeal reiterated that collective management is not presumptive under Irish law, unless the Oireachtas provides otherwise.[6]

Licensing, Infringement and Remedies

Infringement actions brought by societies showcase their enforcement role. In Phonographic Performance Ltd v Candy Rock Recording Ltd (2000) the English Court of Appeal described PPL as the repository of rights of some 2,000 record companies, recovering over £47 million in licence fees.[7]

Equally, Phonographic Performance Ltd v Maitra (1998) confirmed that, upon establishing infringement, final orders may include injunctions, damages and delivery up, illustrating the societies’ capacity to vindicate the aggregated rights of their members.[8]

Competition Law Scrutiny

The market power of CMOs has repeatedly attracted antitrust review. The Irish Competition Authority in Decision No. 326 (PRS & individual creators/publishers, 1994) criticised the mandatory assignment clauses in PRS standard agreements as potentially restrictive of competition.[9] Subsequent decisions concerning IMRO, MCPSI and PPI reflect ongoing regulatory vigilance over licensing practices and tariff-setting.[10]

Equitable Remuneration and Dispute Resolution

Both jurisdictions pair collective licensing with statutory or quasi-statutory mechanisms for settling remuneration disputes:

  • United Kingdom: The Copyright Tribunal (CDPA, ss. 149–152) hears references where terms offered by a licensing body are contested.
  • Ireland: Sections 208(5)–(9) CRRA empower the Controller of Intellectual Property to determine remuneration when parties cannot agree. Notably, the Controller’s jurisdiction is engaged by the “person by or to whom” remuneration is payable, not by the collecting society itself—an analytical pivot in RAAP v PPI (HC).[1]

Contemporary Challenges

Digital and Cross-Border Licensing

Streaming services and multi-territorial online platforms complicate collective licensing, prompting the EU to require transparent governance and accurate distribution data (CRM Directive, Arts. 16–23). UK CMOs subscribe to voluntary codes reflecting similar principles post-Brexit.

Performer Autonomy Versus Efficiency

While collective licensing lowers transaction costs, compulsory aggregation risks undermining individual bargaining power. The Irish jurisprudence, aligned with EU policy, currently tilts towards voluntary participation; however, legislators may revisit the balance should evidence emerge of market failure or systemic under-collection for non-member performers.

Conclusion

Performing rights societies remain essential intermediaries within the musical ecosystem of the United Kingdom and Ireland. Statutory frameworks, reinforced by European norms, endow these bodies with significant powers yet circumscribe them through performer choice, competition oversight and procedural safeguards. Recent Irish case law exemplifies judicial insistence that assignments be explicit, thereby preserving the autonomy that underpins EU and domestic policy. As digital dissemination proliferates, continued vigilance—both juridical and regulatory—will be needed to ensure that collective administration remains efficient, equitable and compatible with fundamental principles of copyright and performers’ rights.

Footnotes

  1. Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd, High Court, 2019, para 24 et seq.
  2. Directive 2014/26/EU, Art. 3; S.I. No. 156/2016 (Ireland), Reg. 2.
  3. See Phonographic Performance Ltd v Candy Rock Recording Ltd [2000] EWCA Civ 25, at [7].
  4. B4U Network (Europe) Ltd v Performing Right Society Ltd [2013] EWCA Civ 1236, at [3]–[4].
  5. Performing Right Society Ltd v B4U Network (Europe) Ltd [2012] EWHC 1989 (Ch), at [6]–[7].
  6. Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd, Court of Appeal, 2020, paras 40–43.
  7. Phonographic Performance Ltd v Candy Rock Recording Ltd, supra, at [7].
  8. Phonographic Performance Ltd v Maitra [1998] EWCA Civ 137.
  9. Competition Authority (Ireland), Decision No. 326 (18 May 1994).
  10. Competition Authority (Ireland), Decisions No. 456 (IMRO/RTE, 1995); 569 (MCPS/MCPSI, 1999); 580 (PPI, 2000).