The GEMA Presumption as an Entry Barrier (Pt. 1/3)
At all2gethernow [access protected, 2016-03-10], I am going to discuss the topic as a part of the #camp [access protected, 2016-03-10]. Furthermore I’m participating in the discussion on “Collection Societies and Rights Management”. Hopefully, many of you will join us to discuss. Those who can’t be there in person, please join our community [link broken, 2016-03-10]. There, you will be able to submit suggestions and comment on anything.
So, please take this series of articles as some kind of basics to what I’m going to discuss with all of you at all2gethernow. No matter whether it’s online or offline. Posts are published day by day.
For parts 2&3, please go here:
Quite often, in any part of this article I’m using the term “free licensed” or “free licences”. That might be a bit misleading. Please take your time to understand it in the meaning of “independently licensed from any collection society (in particular GEMA)”. It does not mean that for example Creative Commons licences are always free of charge. The range of Creative Commons allows for different licences (in contrast to GEMA by the way).
Most of them (at least with music) will probably be free of charge for private use. However, commercial use in most cases depends on certain conditions and the explicit permission of the author plus paying a licence fee.
I’m aware of the fact that the line between private use and commercial use is not that clear, and it is not explicitly defined by Creative Commons. The definition rather relies on the author being the licenser. But in case you are about to license a work – just ask the author if the purpose you are intending is considered private or commercial use. The metadata of any work licensed under Creative Commons should allow for a contact option.
A slight case of overbombing.
Unfortunately, usage of content licensed by Creative Commons or other free licences in Germany pretty often fails because of the so called GEMA presumption. As of now, due to this presumption, if played, performed or copied for commercial use or in public in Germany, every work of music has to be reported to German collection society GEMA. This applies for composers playing their own music as well as for songs not licensed with GEMA – say, Creative Commons. This is confirmed and supported by German jurisdiction.
What is GEMA presumption all about?
GEMA represents a vast number of works. In particular, it includes those of all collection societies worldwide which GEMA is partnering with. In 2006, its number has been as high as more than 5 millions (Lothar Scholz: “GEMA, GVL & KSK”, 3rd and revised edition, 2007, p. 22). Fair enough to roughly estimate the numbers for 2009 to be around 7 millions. Therefore, anytime songs are played in Germany, it is likely to assume the track list includes any songs that are represented by GEMA.
By factual situation the GEMA represents a monopoly. Due to this, several times German courts have confirmed afore mentioned likeliness to be high enough to justify for GEMA to demand the reporting described. Actually, current ruling acknowledges that the proof for a licence already having paid for (Creative Commons, or any other music licensed independently from a collection society) has to be submitted by the licensee.
What’s the problem?
Even in case the (Creative Commons) licences you paid for and submitted are fine with GEMA and no fee has to be paid, it surely is much deterring to potential licensees. They refrain from buying free licences as Creative Commons. Compared to other industries, when maintaining the GEMA presumption Germany’s collection society kind of holds the role of manufacturer and at the same time the role of the State controlling imports.
On the one hand, the obstacle is a psychological one: Despite intentionally trying to avoid working with GEMA the licensee is forced to. GEMA demands to, and no provider of free licences supports this part of administration.
On the other hand, we face another barrier. By a share of almost 30%, the largest group of licensees and customers employing music commercially is broadcast industry – Radio, TV, agencies, and also production companies for broadcast, movies, and advertising (GEMA Business Report 2008, p. 29 [link broken, 2016-03-10]). Though they would like to use free content more often it is the integration in broadcast workflows that’s missing. Even if several projects have to be billed according to different rates at GEMA it is less cost-intensive than billing Creative Commons licences – due to an existing infrastructure that is missing for free licences. At least, it is just one business partner to deal with and to be considered when paying the bills.
So, missing transparency in rates and high cost of licence fees is second to the problems mentioned before. Even the fact that only highly experienced music editors are able to do the uncomfortable and time-consuming task of research for music that fits – it is not important enough. No platform featuring GEMA content is capable of offering advanced search mechanisms matching a music editor’s needs. More importantly, there’s no option for pre-listening and browsing in full length. Neither you can download all tracks in full length and for free as well to get an impression. That’s what promos gave you. But nobody wants miles of CDs on their shelves. Well, apart from collectors, that is.
[End of pt. 1]