[UPDATE: This article is linked and commented by Michael Masnick on TechDirt].

Sorry if I’m a bit late on this one, but I’ve taken some days off. However, this one is by far too barefaced to be believed. I’m afraid it’s no April fools’ joke.

You will remember my article on music distribution platform Jamendo going with Creative Commons. Today, I just read news from a week ago that they are about to integrate a new search tool. It supports promoters, agencies, movie makers and game manufacturers by providing search categories like mood, occasion, genre and language.

Artists participating in Jamendo’s distribution model can opt-in for Jamendo PRO. Business customers of Jamendo who would like to make commercial use of tracks offered can purchase licenses within Jamendo PRO. This differs from private customers who may download everything for free. Most importantly, it’s an additional source of revenue for artists (and Jamendo) that adds to income from ads.

The new tool helps business people interested in searching for the right music – instead of thoroughly relying on communication and recommendation via Jamendo. Any process like this is destined to be too time consuming.

… and then there’s GEMA, Germany’s collecting institution.

“Where’s any bad news in this?”

Currently, there are 9.000 artists at Jamendo, offering about 200.000 tracks. Anything available is either under Creative Commons license, or it is under Free Art License. Prerequisite for any artist offering his output at Jamendo PRO is that no one involved in the production is contracted to German’s collecting institution GEMA or any other similar institution. Moreover, Jamendo’s distribution rights are non-exclusive. As long as the artist doesn’t sign a contract with GEMA and the likes, he’s free to offer his tracks wherever he likes to. Still nothing to moan about.

Mind the gap

Now, Jamendo hands out licenses to anyone who commercially makes use of music distributed by Jamendo. That’s not peculiar, it’s rather common sense. According to Jamendo, this certificate is acknowledged by GEMA and the likes. See Jamendo FAQs. Yet, GEMA denies any knowledge of this. They claim not to know Jamendo’s certificate. This indeed is rather delicate, since anyone who claims to make use solely of GEMA-free “intellectual property” has to back this up in detail. Moreover, if necessary he has to prove it – should the situation arise in court. Any event manager, promoter, any agency etc. has to fill in GEMA’s forms. Even, if an artist performs only his own songs, the event manager has to provide GEMA with a detailed list accompanying the performance.

The GEMA assumption

Legal conception to the above is based on a case in 2006 (AG Munich, judgment from 08/24/2006, Az. 161 C 9132/06). Core to GEMA’s argumentation is a basic assumption, hence known as “The GEMA assumption”: Because of the large and comprehensive repertoire GEMA manages, at performances of national and international dance and entertainment music there is an actual assumption militating in favour of the existence of a liability fee.

Orwell meets Kafka

In fact, this means every commercial or public use of music (you see, borderline is quite blurry) has to be documented for GEMA. The duty of proof is upon the defendant. Actually, why should we call him a defendant anyway? There’s nothing wrong to make use of music. Even more, if it is for legit commercial use. To top it all, even if you may prove that everything’s ok and none of the tracks performed is composed by someone else or administrated by GEMA, the judgment’s text reads something like you have to pay GEMA anyway – for administration of the forms you filled in, complete with all non-GEMA tracks. You’ll pay the “Kontrollapparat” – the “apparatus of control”. You have to love German language for that one.

This text has been published under a Creative Commons BY-NC-SA 3.0 Unported licence. If you would like to make use of the text or parts of it in a way that goes beyond the scope please get in touch with me.