The GEMA Presumption as an Entry Barrier (Pt. 3/3)
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.
[English translation of part 3 is coming soon. Due to organisational tasks at all2gethernow, it will take an additional one or two days to translate. Since the text is available in German already, I just posted it in advance for all German readers.]
Part 1&2 you’ll find here:
“The GEMA Presumption as an Entry Barrier (Pt. 1/3)”
“The GEMA Presumption as an Entry Barrier (Pt. 2/3)”
It’s good to believe, but it’s better to know.
No matter what an expert’s study on the case might look like, the proof of availability for a sufficient number of free licensed content to counter GEMA’s presumption has to be brought forward to court. The “GEMA assumption” is part of German jurisdiction, therefore it’s much likely the ruling has to be found at Germany’s highest court, the Federal Court (BGH). But the true challenge is its verifiability. GEMA of course always has the current size of its repertoire at hand – but where do we find verifiable numbers for “freely licensed” works? Btw, “freely licensed” means any music that is not administered by GEMA or any other collecting society GEMA collects monies for (ASCAP, SACEM, PRS…).
Apart from that, GEMA has people doing PR, and they have lobbyists. Artists who offer non-GEMA works don’t. From the consumer’s perspective, artists outside of the GEMA dominated system do hardly exist. Even if popular artists like Trent Reznor or Smashing Pumpkins sometimes do release Creative Commons music – the masses don’t take notice. It’s not of any relevance to the public. Most attention for artists launching campaigns and strategies like that, and for business models too is paid by the internet. By digital natives. The organisation of Creative Commons has project leads and affiliates around the globe. The artists working with Creative Commons licenses though have no official or inofficial representation. That’s absolutely not good in times when attention is a currency in itself, and products and services are valued by the amount of attention they receive.
One important side effect of the lacking cooperation and coordination: It’s incredibly hard to find numbers on how many works have been licensed under Creative Commons, or more generally, how many are not administered by any collecting society – including such as Public Domain.
Get on your boots now.
What’s the next step in disproving GEMA’s presumption? The presumption that every time music is publically played in Germany, there is at least one musical work contained that is administered by GEMA? This is essential to enable Creative Commons artists a groundwork to increase their income.
If I’m calling Creative Commons and non-GEMA artists to form an association on their own, you may say – ah, yet another one. But as I just mentioned, you won’t find any representing body for those. There’s independent music services and labels, there’s composers, there’s producers… but no coordinated effort for composers of free licensed music. Though for the start it doesn’t even require to be launch another official body, association or society.
An alliance will do. Some sort of cooperation. A presence that can clearly prove: “This is the number of registered creators and artists of free licensed content. All registered participants up to now have released a number of x works under free licences.” If you have a site on the web, a counter like the one at Germany’s body of Music Industry would be nice. Although, their counter shows the number of illegal downloads. Moreover, this one is based upon estimation obviously. A true counter has more impact and shows more credibility by far. Why numbers are extraordinarily important shows the fact that ADAM, the new asscoiation of German authors of musical works based their launch’s presentation on statistics. The keynote to introduce ADAM at c/o pop conference was held by Michael Söndermann (UNESCO Institute of Statistics, Bureau of Cultural Economics Research, Cologne). He demonstrated why there’s a need for ADAM.
However, building a new community must not mean it is closed for the rest of the world. We have to be open to members of all collecting societies. For all who want to learn, and for all of those who consider switching over – and for those who have already ended their membership. Unfortunately, the latter coming from GEMA will be truly “free” in three years. Excluding others is neither tolerable nor reasonable.
Visibility & Presentation.
First and foremost, composers and producers of free licensed audio content must cooperate. They have to present themselves together to the public to gain strength. The next step would be finding a suitable organisational form for that. Not by offering content on a platform shared by all creators and content providers. The purpose is to make the available repertoire visible – by linking to it. No matter if it’s digital distribution platforms like Jamendo S.A., CCMixter or starfrosch.ch. No matter if it’s netlabels, studios, music by professional and semi-professional artists. It might even be spare-time musicians or user generated content – but we have to show it. The masses of available and free licensed musical content must be made visible.
This presentation is our promo. Like every promo, you have to share it with the people. Then you might refute the GEMA presumption. In the long term, this means the basis for an increase in revenues.
After all, the disproval of the GEMA presumption is only the first step. Though, it does not require to change GEMA’s statutes… which would be more difficult by far.
But potential customers (licensees) certainly don’t want to negotiate individual contracts with each and every composer, musician or content provider. They don’t want their accounting system to implode. Too much effort, too much cost, too complex. Finally, there is no module or interface in existence to integrate with broadcasters’ and corporations’ workflows. These are dominated by few and highly proprietary systems for Digital Asset Management and Production Management.
So, is it possible to launch an Alter Ego to GEMA? Is a collecting society for musical works, licensed under Creative Commons and free licenses feasible and reasonable? Can it work out? Actually, this would ease the pain for lots of licensees and creators alike. In particular for those who would really like to license a good number of those works per year.
On the other hand, might GEMA be willing to account for other licences as well – similar to collecting licence fees for other international collecting societies? Keep in mind: Other collecting societies are already running projects with Creative Commons licences. They enable their members to release selected works under Creative Commons (The Netherlands). Collecting societies in the US even have to allow for that… by law.
This bottleneck has to be overcome. This is the true frontier. Then, at least, the way has been paved for a full participation of Creative Commons licensed content within a commercial market.
The day after…
GEMA members might see their safe harbour threatened. Let’s assume GEMA can’t demand to report publicly played music anymore. How can GEMA rest assured that all performances and playlists are reported? Well, same as today – they can’t. Therefore, the concept and formula for the distributional key of license fees has been built upon statistics.
In case an alliance of creators and providers of free licensed musical works is launched, you must face the fact that disproving the GEMA presumption is only possibly at court. It is based on jurisdiction. A single person won’t succeed I’m sure. It requires (heavy) support by a legal body, association, corporations – whatever. It will be brought forward to court. Most likely to Germany’s Federal Court (BGH).
Oh yeah… if a relation of 98:2 would be sufficient to be proved, we are talking of less than 150.000 musical works. – So, who calls Jamendo to get a written and notarized proof for their 200.000 tracks?