Public Performance of Music on Public Transport – An Overlooked Copyright Question

While often treated as a matter of nuisance or passenger etiquette, there is a deeper legal question: could such activity constitute a “public performance” under the Copyright, Designs and Patents Act 1988 (“CDPA”)?

Public Performance under the CDPA

Under section 19 CDPA, copyright in a musical work is infringed when it is performed in public without the appropriate licence.

The concept of “public” has been interpreted broadly by the courts. In Harms (Inc.) v Martans Club Ltd [1927] 1 Ch 526, performance in a private members’ club was held to be “public” because it went beyond the domestic or private sphere.

Similarly, in PRS v Harlequin Record Shops Ltd [1979] FSR 39, music played audibly in a shop was deemed a public performance, even though the primary purpose of the premises was not to provide entertainment.

On this reasoning, music played audibly on buses, trains, or the London Underground could fall within the scope of public performance, particularly given that transport environments involve non-consenting members of the public who cannot avoid exposure to the sound.

Liability of Operators

The CDPA makes clear that liability for unlicensed public performances is not confined to the individual performer. Operators of venues or environments in which such performances occur may also be liable if they “authorise” or permit the infringement. In CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013, the House of Lords clarified that “authorisation” involves granting or purporting to grant the right to do the infringing act.

While Amstrad escaped liability in that case, transport operators who knowingly tolerate widespread unlicensed public performance could arguably fall within the scope of liability, especially if they provide an environment where the activity flourishes unchecked.

The parallel with taxi services is instructive. When a taxi driver plays recorded music audibly for passengers, a licence from PRS for Music and PPL is required. This recognises that even a confined space can constitute a “public” performance where music is consumed by paying members of the public. If that is the case for a taxi carrying three passengers, the argument for licensing public transport vehicles carrying dozens, or even hundreds, of passengers is arguably stronger.

The Role of PRS and PPL

Collecting societies already administer tariffs for a wide range of public and semi-public environments: gyms, shops, hairdressers, even waiting rooms. Yet, for some unknown reason, public transport operators are not generally subject to tariffs that cover passengers’ audible music consumption. Responsibility has instead been left at the level of the individual, which is both impractical and unenforceable.

Given that rail operators and Transport for London exercise significant control over passenger behaviour - banning smoking, eating, or drinking, for example - they are in a strong position to deter unauthorised public performance of music. A licensing model that places the responsibility on the operators rather than on individuals would be both realistic and consistent with existing practice in other commercial settings.

Protecting Creative Value

At present, composers, performers, and rights holders are not adequately protected from the growing practice of unlicensed public consumption of their work in transport environments. If unaddressed, this risks normalising the erosion of copyright value.

As Lord Millett observed in CBS Songs Ltd v Amstrad, “copyright exists not merely to protect authors in the abstract but to ensure that they receive fair remuneration when their work is used in ways that generate value for others”.

For rights holders, the stakes are high. Music remains one of the UK’s most important cultural exports, yet its value depends on a licensing framework that adapts to changing patterns of consumption. Public transport is a major site of music use, and it is time the law, collecting societies, and operators acknowledged this reality.

Conclusion

The issue of passengers playing music on public transport should not be dismissed merely as a matter of etiquette or passenger courtesy. It raises substantive legal and commercial questions about public performance, operator responsibility, and the sustainability of the UK’s creative industries. Extending licensing obligations to transport operators may be the most practical and equitable way forward, ensuring that the rights of creators are properly recognised and safeguarded in the everyday spaces where their works are consumed.

Irving David is as a music and entertainment lawyer. Irving has built up an impressive roster of clients in the music, entertainment and media industries over the years and offers extensive knowledge of Commercial Law and Intellectual Property Rights including Copyright, Trademarks and Product Licensing.