Performing Right Society Licence and Phonographic Performance Licence

The MPS is seeking to renew the current Phonographic Performance Licence and the Performing Right Society Licence for a further 12-month period from 1 April 2020 to 31 March 2021 at a total cost of £257,000.

The MPS is legally required under the Copyright Designs and Patents Act 1988 to obtain the licenses to permit the playing of music in its buildings, this is based on the number of staff employed.

This paper request for a single tender action to commence in order to renew the current licenses because Phonographic Performance Licence and Performing Right Society Licence Ltd is the only provider of both licences.

The Deputy Mayor for Policing and Crime is requested to:

1. Approve a single tender action procurement exercise for the annual renewals of a Phonographic Performance Licence (PPL) and Performing Rights Society (PRS) licence to PPL PRS Ltd (the only provider of the licences).

2. Approve the cost of the new annual licences, PPL Licence £63,924.97 and PRS Licence £193,422.86, grand total £257,347.83 for the period 1 April 2020 to 31 March 2021. The funding is available within existing budgets.

3. Delegate authority to the Commercial Director (HQ Commercial Services) to enter into a contract with a single supplier, PPL PRS Ltd.

4. Delegate authority to the MPS Commercial Director to instigate a single tender action for future annual renewals and to award subsequent contracts to PPL PRS Ltd, providing that the annual cost is no more than £400,000, taking into account further annual tariff increases and potential increases in the recruitment of extra police officers and staff.

1. Introduction and background

1.1. PPL Ltd and PRS Ltd entered into a Joint Venture at the end of February 2018 and formed PPL PRS Ltd.

1.2. PPL PRS Ltd, is a non-profit association (originally set up in 1914) and is responsible for ensuring the application of copyright to music and related media in the United Kingdom and the payment of monies associated with the use of this copyrighted data in the UK.

1.3. Historically in the MPS, the PPL licence was renewed separately with PPL Ltd, as a single tender action under £100k. Due to the forming of the Joint Venture, it was agreed with Operational Support Services who manages the licences, Commercial Services and PPL PRS Ltd to align both licences into one single annual renewal from 1 April to 31 March each year.

2. Issues for consideration

2.1. PPL PRS Ltd are the only official providers of the PPL licence and PPL licence, which allows for exclusive music rights to be exploited in compliance with Copyright Designs and Patents Act (CDPA) 1988. Therefore, it is not possible to carry out a competitive tender process for the renewals.

2.2. MOPAC / MPS is required, by law to hold both a PPL licence and a PRS licence under the CDPA 1988. The absence of both licenses would be considered unauthorised and an infringement of the CDPA 1988 and the MPS would be in breach of a statutory legal requirement. It would be almost impossible for the MPS to impose and monitor a force wide ban on the playing of music/media within MPS buildings.

2.3. The PPL licence is legally required whenever a soundtrack is played in public, allowing PPL PRS Ltd to collect royalties for the copyright owners of the soundtrack (most commonly record companies) that controls the rights to the recording of the music. This is a special agreement agreed between PPL and the MPS for calculating the licence costing.

2.4. The PRS licence is legally required to permit the playing of music in buildings, this is based on the number of staff employed. The licence is paid on behalf of the publisher of the music who controls he rights of the music. The licence legally protects the MPS for music played on its premises, including music played on televisions, radios, in rest areas, gymnasiums, canteens and employees having radios on in the background. This is a nationally agreed formula for calculating the licence costing.

2.5. The MPS have explored the option for a multi-year deal with PPL PRS Ltd. However, PPL PRS Ltd can currently only offer annual licences, as their tariffs are inflated annually and their systems do not currently have the mechanism to be able to calculate rates beyond a 12 month period. The tariffs are renewed during January and February and therefore the costs associated with the renewals are subject to change.

2.6. In 2013 the MPS Management Board were tasked by the Deputy Commissioner to conduct an urgent review to establish if the PPL and PRS licences were required in the future. This review concluded it was appropriate to continue paying the licences. In particular, it was noted one of the two forces contacted who had ceased to pay the licence fees has subsequently resumed as enforcing compliance was apparently costing more than paying the licence fee.

3. Financial Comments

3.1. The 2020/21 PPL licence will cost £63,924.97 and the 2020/21 PRS licence with cost £193,422.86, with a total cost of £257,347.83. (These values are subject to change as per the new tariff rates published in February 2020). The total cost will be met from existing approved MPS budgets.

3.2. The primary driver of the PPL licence fee is the number of MPS buildings. If building numbers increase or reduce in a year there is expected to be a correlating increase or reduction in the licence contract price. This is a special agreement agreed between PPL and the MPS for calculating the licence costing.

3.3. The primary driver of the PRS licence fee is staff numbers, if staff numbers increase or reduce in a year there is expected to be a correlating increase or reduction in the licence contract price. This is a nationally agreed formula for calculating the licence costing.

4. Legal Comments

4.1. MOPAC is required by the CDPA 1988, to hold a valid PPL licence and PRS licence to allow music to be played publicly on its premises (including via the radio or television). Failure to hold a valid PPL licence and PRS licence will place MOPAC in breach of the CDPA 1988 and expose the organisation to risk of prosecution for copyright infringement.

4.2. MOPAC is a contracting authority as defined in the Public Contracts Regulations 2015 ("the Regulations"). All awards of public contracts for goods and/or services valued at £181,302 or above will be procured in accordance with the Regulations.

4.3. This report confirms that PPL PRS Ltd is the only economic operator legally capable of granting the PPL and PRS licences. Therefore, MOPAC can obtain the licences directly from PPL PRS Ltd in full compliance with the Regulations under paragraph 4.13 of the MOPAC Scheme of Delegation and Consent, which provides that the Deputy Mayor for Policing and Crime has delegated authority to approve all contract exemptions £100,000 or above.

5. GDPR and Data Privacy

5.1. The MPS is subject to the requirements and conditions placed on it as a 'State' body to comply with the European Convention of Human Rights and the Data Protection Act (DPA) 2018. Both legislative requirements place an obligation on the MPS to process personal data fairly and lawfully in order to safeguard the rights and freedoms of individuals.

5.2. Under Article 35 of the General Data Protection Regulation (GDPR) and Section 57 of the DPA 2018, Data Protection Impact Assessments (DPIA) become mandatory for organisations with technologies and processes that are likely to result in a high risk to the rights of the data subjects.

5.3. The Information Assurance and Information Rights units within MPS will be consulted at all stages to ensure the project meets its compliance requirements.

5.4. The project does not currently use personally identifiable data of members of the public, so there are no current GDPR issues to be considered. If the project uses personally identifiable data of members of the public at a later date DPIAs will be completed as needed.

6. Equality Comments

6.1. Any equality and diversity implications linked to the provision of the PPL and PRS licences are considered under the Copyright, Design and Patents Act (CDPA) 1988.

6.2. This business case has undergone initial equality screening. Due regard has been taken to the Equality Act’s Public Sector Equality Duty under Sec 149 of the Equality Act 2010. Real consideration has been taken to assess equality impact caused by the proposed business change including effective engagement and analysing relevant equality information. As a result no negative impact has been identified to any individual and/or group safeguarded by a protected characteristic and to those who are not due to the utilisation of pre-existing staff members and the funding is for supplementary business continuity. Further reviews will be conducted (if necessary) and process monitoring completed. If as a result of the continual development of this strategic paper Equality Impact is identified, a full Equality Impact Assessment will be initiated.

7. Background/supporting papers

7.1. Appendices:

• Strategic Case

• Economic Case

• Commercial Case

• Financial Case

• Management Case