The entire music industry has its sights set on 2021, trying to calculate the possible scenarios for the realization of tours, festivals, programming in venues, etc. The concerts that have been held since the beginning of the pandemic in March have only served to maintain a minimum of activity, with very weak economic conditions for artists, professionals and companies. It is difficult to make forecasts as to dates, but we can venture with certain predictions about the measures and solutions that may be decisive for the return to a certain normality in the activity of live music.
In 2021 the pandemic will still be very present, it will be a year of transition to herd immunity. But we will most likely find fewer restrictions and more options for the live music sector. In this article we analyze the possible solutions for the recovery of live music in 2021, with the return of mass events and normality in concert halls. The trend that gains positions is the immunity card or vaccination certificate. However, it could encounter several difficulties for its implementation in practice, so other complementary solutions will be necessary, such as rapid tests at the door, strong health security measures in the context of COVID19 and contingency plans. And above all, the pandemic has taught us that any medium-term projection is complicated in this context, and must be governed by common sense and prudence.
Immunization card or vaccination certificate for access to concerts
Logically, vaccination and immunization of the population is the main solution to recover profitable capacity levels in the live music sector. As long as a sufficient rate of vaccination of the population is reached, there will be a transitory situation in which people who have received the vaccine would be in a position to perform activities with lower risk than people who are not vaccinated. In this sense, a possible solution for the return of festivals and concert halls in 2021 would be to allow access to concerts and mass events only to those who present a vaccination certificate.
In fact, the Government of Andalusia has just announced that it is studying the measure of the immune card, which would be mandatory to access cultural and sporting events, and even to travel within the territory of the autonomous community. It would be a certificate in QR format, with the data of the person and the vaccine received. The Ministry of Health is also considering this measure for the near future, within the so-called Vaccination Strategy, which was already contemplated a few months ago by the Community of Madrid.
Therefore, the organization of concerts would depend on requiring the certificate of vaccination or, alternatively, a certificate of negative PCR with less than 72 hours.
However, the immunity card measure for concerts and mass events presents problems in practice. In principle, it seems that being vaccinated does not prevent being a carrier of the disease, so it will continue to be essential to sectorize the public in order to keep vaccinated people separate from others, to avoid the risk of contagion. Moreover, if vaccination records are managed by each autonomous community, problems will surely arise in coordinating and certifying this information when concert attendees arrive from another territory. Not to mention the need for homologation for foreign tourists, as many festivals and programs have a high presence of international audiences.
On the other hand, this measure raises several legal questions : what about data protection, is there discriminatory treatment, what if the vaccination card is falsified, is the right of admission sufficient to prevent entry to those who have not been vaccinated, and will there be differences in the regulations of each autonomous community?
In any case, the solution of the immunity card, PCR tests or antigens to access a concert must be accompanied by security measures in the COVID19 context and contingency plans.
Quick tests at the concert entrance
The pilot concert held in the Sala Apolo in Barcelona on December 12 opens another of the most hopeful lines for live music in 2021. This experiment by Primavera Sound, the Germans Trias i Pujol Hospital, Dr. Bonaventura Clotet and the Fundació Lluita Contra la Sida, consisted of:
- antigen and PCR testing prior to concert admission (500 volunteers as attendees)
- the audience can watch the concert standing up and without safety distance
- permanent use of masks inside the room
- second PCR test one week later
If the study demonstrates the efficacy of these measures and of pre-entry antigen testing, a model could be defined for mass events in 2021. These tests would be performed in pre-entry filters, although additional testing at source could be necessary to avoid the movement of infected persons to the concert venue intermedia.
Health and Safety Measures in 2021 for concerts and events
Beyond these two major solutions for events that could be implemented in 2021 (vaccination card and/or rapid tests), as long as the COVID19 context and the health alert are extended, it will be necessary to maintain the security measures that have been implemented by the cultural sector in an exemplary manner, and even continue to make progress to improve these precautions. Especially in terms of sectorization, traceability and staging.
The main lines of these health safety measures in the COVID19 context are:
- Sectorization of spectators into zones
- Traceability
- Staggering. Measures for entry and exit of the public and workers.
- Mandatory use of face mask
- Measures for the movement of people
- Information measures for the public and employees
- Hygiene, cleaning and disinfection measures
- Ventilation and air-conditioning, CO2 meters
- Measures for the protection of workers
- If applicable, interpersonal safety distance (depending on conditions if rapid tests are performed).
All these measures must be adapted to the conditions of the event and the health situation. These are fundamental issues, which must be added to all the security work, pre-planning, event management and post-event phase.
Health and Safety Measures in 2021 for concerts and events
But the possible measures and solutions that can be adopted by the live music sector to overcome the pandemic in 2021 raise several doubts at the legal level. Among the main legal challenges and regulatory compliance that we have identified in our firm with respect to action plans in the organization of concerts, we find the following:
- Privacy and data protection. Asking the public to confirm whether they are vaccinated, or to take an antigen test to prove that they are free of the disease, is a strong intrusion into their privacy. Health data have an enhanced position in data protection regulations, and their processing by concert organizers can be problematic. The same could be true for the measure of traceability of possible outbreaks among event attendees. Therefore, it is essential to have expert legal advice to design and execute an adequate regulatory compliance protocol at all stages of the concert.
- Ticket purchase conditions. The ticket sales process and purchase conditions must include clear and transparent information on the measures and restrictions that will be applied for the concert in the context of COVID19. It is necessary to weigh and coordinate possible conflicting interests with respect to consumer protection regulations for public events and health safety regulations and protocols for events. During the summer of 2020, we have received numerous queries from concert promoters regarding complaint forms filed by attendees at their concerts. Particularly problematic can be the case of the requirement at the entrance of a card with vaccination data, PCR results or imposing the performance of a test.
- Non-discrimination and right of admission. In line with the previous legal challenge, it is also advisable to establish a protocol together with the rest of the concert organization work for the exercise of the right of admission against possible attendees who do not present the vaccination certificate, submit to a test, or fail to comply with the health safety measures that have been adopted.
- Falsification of immunization cards or test certificates. As we pointed out at the beginning of this article, one of the problems presented by the solution of requesting the immunization card at the entrance (or a negative PCR test with less than 72 hours) is the possible cases of forgery. The management of access to an event is complex and it is impossible to perform an exhaustive verification process.
- Changing and dispersed regulation. Difficulties implied by the existence of 17 regulations and criteria for the management of a concert or multitudinous event. In addition, in the context of COVID19 the regulatory cocktail shaker is constantly shaken, with modifications in some cases improvised and incoherent. By 2021 it will be necessary to have greater legal certainty and a clear framework for action in the adoption of crucial measures that could allow a return to a certain normality for live music.
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Media: Sympathy for the Lawyer 06-2-2021