Society for musical performance and mechanical reproduction rights

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Society for musical performance and mechanical reproduction rights
(GEMA)
GEMA logo
purpose Collecting society
Chair: Harald Heker
Establishment date: September 28, 1933
Number of members: around 3,700 full members (plus approx. 6,400 extraordinary members and approx. 59,600 affiliated members)
Number of employees: 937
Seat : Berlin
Website: www.gema.de

The Society for Musical Performance and Mechanical Reproduction Rights ( GEMA ) is one of the largest authors' societies for works of music in the world. In Germany, it administers the rights of use from the copyright of more than 68,000 members ( composers , lyricists and music publishers ) as well as of over two million rights holders from all over the world.

For 2018, GEMA generated income of more than one billion euros (1,019.2 million €; 2017: 1,074.3 million €). From this sum, it distributed € 859.5 million in the spring of 2019 to its around 74,000 members (composers, lyricists and music publishers) as well as to more than two million rights holders around the world.

The collective of members affiliated to it has been given the legal form of an economic association as a statutory collecting society in accordance with Section 22 BGB . The association is based in Berlin and is represented in and out of court by the board of the local directorate-general. Harald Heker has been GEMA's CEO since 2007 . The chairman of the supervisory board is Ralf Weigand.

In addition, GEMA also operates a number of district offices of the same name across Germany, which promote and monitor the economic marketing of the club's music products through marketing and debt collection services.

The current organization was founded in 1933 as STAGMA, and has been called GEMA since 1947.

Other collecting societies, for example in Austria , the AKM and in Switzerland , the SUISA .

Membership and structure

GEMA General Directorate Berlin in Bayreuther Strasse.

The association represents around 3,700 composers , lyricists and music publishers in Germany. In addition, there are around 6,400 composers, lyricists and publishers with severely restricted rights, as well as 59,600 people who have signed an authorization contract with GEMA but do not meet the professional requirements of membership (so-called affiliated "members" without membership status under association law). It also has another two million beneficiaries abroad (as of 2014).

Membership is necessarily voluntary, as the rights of use automatically resulting from copyright are initially reserved exclusively for the author . Since the copyright itself is not transferable , the author can only transfer the management of the same to another natural or legal person. Theoretically, an author has the right to exercise his rights himself or to delegate this task to a third party (e.g. a collecting society). Specifically, the term perception means that users of works registered with GEMA - mainly manufacturers of (image /) sound carriers, radio and television broadcasters, organizers of live music, street festivals, Christmas markets - receive the necessary usage rights from GEMA for a usage fee need to acquire. The money raised is then paid out by GEMA after deducting an administration fee to the beneficiaries, i.e. the authors and publishers.

De facto , however, any attempt to found an institution competing with GEMA has so far been prevented by the German Patent Office , and it is hardly possible for an individual artist to represent their own legal claims.

In order to be represented by GEMA, an authorization contract must be concluded with GEMA through which GEMA is authorized to exercise rights for the entire repertoire of the author / publisher concerned. Members can become: composers, lyricists of texts set to music (e.g. no novelists), legal successors of composers and lyricists and music publishers.

The association is organized separately according to professional groups and types of membership. The three professional groups (also called curia) are the composers, lyricists and publishers. There are basically three forms of membership: affiliated, extraordinary and ordinary membership. At the end of 2014, 60,260 GEMA members were composers and lyricists, 5,254 publishers and 4,284 legal successors.

Any composer, lyricist or publisher can become an affiliate member (see above). Affiliated members are not considered members in terms of association law, but receive their distributions according to the same rules as the other members. Extraordinary membership must be applied for. Certain prerequisites must be met (e.g. submitting five of your own sheet music manuscripts or already published sound carriers, etc.). This application can also be rejected, but submitted as often as required with new documents. Extraordinary members can become full members upon application after five years of extraordinary membership if they have earned € 30,000 in GEMA revenue within five consecutive years (of which at least € 1,800 for at least four uninterrupted years). A higher rate of € 75,000 applies to publishers (including at least € 4,500 for four years).

With funds from the GEMA Foundation , needy composers, lyricists and music publishers as well as their relatives are supported on request.

Statutory questions to which u. a. distribution and payment modalities are also discussed in the general meeting and changes are decided if necessary; Ordinary members and the 64 delegates of the extraordinary and affiliated members are entitled to vote in the general assembly. The general assembly elects the 15 members of the supervisory board (six composers, four lyricists, five publishers). The supervisory board elects the chairman of the supervisory board from among its members and is responsible for the composition of the management board.

According to the statutes, the joint delegates of the extraordinary and affiliated members must be determined according to the following key: 32 delegates must be composers (including at least 12 heirs / legal successors), 12 lyricists (including at least 6 heirs), and 20 publishers. In 2010 there were 6 persons (0.1%) heirs in the group of extraordinary members and 3,749 persons (6.9%) among affiliated members. A minority of 26 representatives of the currently active composers and lyricists thus contrasts with a majority of 38 rights administrators and legal successors.

Remuneration and flat fee

Works and media

For the public performance of copyrighted musical works from GEMA's so-called “world repertoire”, license fees must be paid to GEMA, which it then distributes to its members according to a complex distribution key. After an event in Germany that is subject to GEMA, organizers must send the music sequences or set lists to GEMA. The distribution of the royalties (including royalties ) is based on a point system that distinguishes between light music and serious music ; a single work from the popular music of the usual playing time, for example, rated with 12 points, an instrumented with large orchestral work of more than sixty minutes playing time , however, with 1,200 points.

According to Section 54 of the Copyright Act , a so-called flat fee can be levied for devices and media that are "[...] used to carry out [...] reproductions [...]" , which is already included in the purchase price. This fee goes first to the Central Office for Private Transfer Rights (ZPÜ) and from there is partly passed on to GEMA. For the devices affected by the flat-rate tax and the collection rates, see flat-rate tax # Current rates in Germany .

The World Association of the Phono Industry ( IFPI ) applied in January 2004 to reduce the royalty rate agreed in 1997 for the licensing of sound carriers from the current 9.009% of the manufacturer's selling price to 5.6%. GEMA criticized this approach as an "attempt by the German sound recording industry to solve its problems at the expense of and at the expense of the creative composers and lyricists". In 2005 the arbitration board at the German Patent and Trademark Office in Munich decided in favor of GEMA. The remuneration rate was not lowered. The arbitration board of the German Patent Office also decided in 2006 in favor of GEMA in other arbitration proceedings initiated by the IFPI (music videos, downloads and ring tones).

Since April 2003, GEMA has been offering access to its works database with around 1.6 million copyrighted musical works on its website.

Differentiation from other societies

In the online area, GEMA only exercises the rights of its own members. In the economically much more important international area, the rights of use for online use are exercised by specially founded companies that are operated by the rights holders themselves (usually the music publishers), e. B. SOLAR-Music Rights Management GmbH for the Sony and EMI repertoire or ARSEA GmbH for the BMG repertoire, in which GEMA only holds company shares. The online use of the important US repertoire is administered by SESAC Deutschland GmbH, based in Munich (SESAC International).

fees

The fees for performances and background music are staggered. The rates of remuneration are based on the operator's branch and the size of the event rooms.

The recording of GEMA-subject music in telephone systems to background music for telephone announcements in answering machines or telephone queues is subject to payment for companies. Many (especially small) companies are unaware of this. The upgrading of commercial websites through acoustic branding (audio branding) with the inclusion of music is also subject to registration.

GEMA grants discounts for certain events. This includes charity events (10%) on the one hand, but also religious, cultural or social events in general (15%) on the other. The latter receive an even greater reduction if it can be proven that no economic goals are pursued (up to 20%). GEMA also provides for discounts on general agreements with associations.

Free events

On the other hand, there is no obligation to pay remuneration for youth welfare , social welfare , geriatric and welfare care , prisoner care and school events if they are only accessible to a specific group of people who are allowed to participate in the event free of charge, according to their social or educational purpose and the musicians do not receive any special remuneration ( Section 52 (1) sentence 3 UrhG). Furthermore, under certain conditions, those from educational institutions are also free of charge if they serve to illustrate the lesson - for example a student concert in which only members of the educational institutions and their families take part ( Section 60h, Paragraph 2, No. 1 UrhG).

Legal basis

The work of all collecting societies is based on laws and regulations. In Europe , collecting societies draw their legitimation from the constitutionally guaranteed protection of intellectual property , the intellectual property law , which is anchored in the constitutions of the European states.

Although the concept of intellectual property has already been introduced in the North German Federal Constitution of 1867 and the German Reich Constitution of 1871 , Article 14 of the Basic Law only speaks generally of property , inheritance and expropriation , which, however, includes intellectual property. In the state constitutions of Bavaria , formerly also Baden and Hesse , which were created before the Basic Law, on the other hand, the intellectual property of authors, inventors and artists is placed directly under the protection of the state, which expressly enables the existence of collecting societies.

In addition, collecting societies learn their legitimation from copyright law , which is also regulated by law in all European countries. Copyright laws (in Germany specifically the law on copyright and related rights) grant the author a number of exploitation rights, which, however, he could hardly exercise alone without a collecting society, which is why he assigns them. Assigned exploitation rights become usage rights.

In Germany, for example, this is regulated by the Copyright Management Act of September 9, 1965. The core of this law is the compulsory perception ( Section 6 UrhWahrnG) and compulsory conclusion ( Section 11 UrhWahrnG), also known as the compulsory contract , which means that collecting societies on the one hand have all transferred to them Actually have to pursue rights and, on the other hand, are not allowed to deny anyone (for example authors, composers, lyricists or even phonogram manufacturers) entry into the collecting society as long as all entry conditions are met. On June 1, 2016, the Copyright Administration Act was replaced by the Collecting Societies Act (VGG). Since then, these regulations can be found in Sections 9 and 34 VGG.

GEMA is subject to a double obligation to contract, i. On the one hand, it is obliged to its members to exercise the rights granted to it. On the other hand, it is still obliged to grant the music user these rights on request for a fee.

history

Old logo

Forerunner from 1902 to 1933

With the entry into force of the law on the copyright to works of literature and music in January 1902, it was written that the public performance of a musical work requires the approval of every author.

As a result, the Institute for Musical Performance Law (AFMA) was founded on July 1, 1903 by the German Sound Composers Cooperative (GDT) . This is significantly later than, for example, in France, where the collecting society SACEM was founded as early as 1851 , the origins of which can be found in an interest group of musicians and publishers, the Agence Centrale .

The initiators of the founding process in Germany were Richard Strauss , Hans Sommer and Friedrich Rösch . The GDT was led by the most successful composers of serious music (serious music) of the time, including Engelbert Humperdinck , Georg Schumann and above all Richard Strauss. The board of the GDT was also the board of the AFMA.

In 1904 the GDT published a memorandum on the purpose of the AFMA, as there was still great confusion among musicians as well as organizers and users. The central point of the text is the following section, the meaning of which can still be found today in the GEMA association statutes:

“The establishment does not pursue any commercial purposes. It is just an exchange. She does not collect a reserve fund. A business profit is impossible for them. Administrative costs are deducted from the fees received, as well as an amount of 10% for the cooperative's relief fund. All other income, down to the last penny, is distributed to the composers, lyricists and publishers entitled to subscribe. "

After AFMA was founded, things got quite turbulent in Germany. In autumn 1903, the GDT / AFMA concluded a reciprocity agreement with the Austrian “Society of Authors, Composers and Music Publishers” (AKM), which represented an agreement between AFMA and AKM.

In 1909, the GDT founded a second company, which dealt exclusively with the exploitation of mechanical reproduction rights for records, the Institute for Mechanical-Musical Rights GmbH (AMMRE).

On January 1, 1911, the AKM dissolved the reciprocity agreement with the GDT / AFMA. In 1913, 51 publishers and composers terminated their license agreement with the GDT / AFMA. The AFMA's assignment contract was considered "void" by the Reichsgericht. As a result, an additional agreement was drawn up by the serious music composers, which allowed AFMA or the board of GDT to continue the AFMA authorization contract.

On December 16, 1915 the cooperative for the exploitation of musical performance rights GEMA was founded, whose board of directors and supervisory board consisted mainly of composers, lyricists and publishers of popular music (light music). The publishers Hermann Rauh and Robert Lienau as well as the composers Heinrich G. Noren and Victor Hollaender were elected to the board. The supervisory board consisted of 9 members: As a publisher Volkmann, Oertel, Hoffmann, Stahl; as composers Edgar Istel, Johannes Doelber, Walter Kollo; as lyricists Robert David Winterfeld (Robert Gilbert) and Max Reichardt.

On February 20, 1916, GEMA joined forces with AKM to form an “Association for the Protection of Musical Performance Rights for Germany”. This created a situation in Germany that was completely contrary to the original interests of authors and organizers or users - two competing collecting societies. AFMA = E-Music Authors / GEMA / AKM = U-Music Authors.

Now the struggle that Richard Strauss and Friedrich Rösch had waged since the founding of the GDT against the popular music authors they referred to as "afterkunst" only became really damaging. This was followed by years of furious struggle, which Richard Bars, who became a member of GEMA's supervisory board in 1924, described as follows: "It was not just a Sturm und Drang period, but a real state of struggle". = E-music against light-music.

On July 22, 1930 Leo Ritter, Gustav Bock, Fritz Oliven, Eduard Künneke and Jean Gilbert (GEMA), Max Butting, Arnold Ebel and Heinz Tiessen (GDT / AFMA) as well as Bernhard Herzmansky and Alfred Kalmus (AKM) signed the contract in Berlin about the new "Association for the Protection of Musical Performance Rights for Germany". The office remained at the GEMA address at Linkstrasse 16 under the name GEMA-AKM-Organization. The GDT was now just one of several composers' organizations. Richard Strauss took over the honorary chairmanship of the GDT that was offered to him.

The partners GDT / AFMA, GEMA and AKM had founded a joint collection agency with the protection association (GEMA-AKM organization), but otherwise continued to exist independently. The GDT continued to act as a lobby group, especially for serious composers. Arnold Schönberg had strictly refused to make common cause with entertainment composers. Triggered by an article in the “Schaffendenmusik”, in 1931, in a letter to Max Butting, he strongly criticized the coexistence of serious and popular music in a collecting society: “It is impossible to trade pearls, diamonds, radium and other expensive things in the same business , where pins, old pants and junk goods are also sold. And it will never be possible to do a job that takes as much time as checking the hits and failure performances, and at the same time having the accuracy and fine estimation for rarer goods that serious music demands. "

At the beginning of 1932, AFMA could look back on a first year of joint cooperation with GEMA and AKM. As the AFMA annual report noted, this first normal year after the crisis went smoothly internally, and the contract with ASCAP (USA) was signed together with GEMA.

On March 24, 1933, an extraordinary general assembly took place at GEMA's instigation. On the part of GEMA, too, they now recognized the need for a single Reich German performing company. With express emphasis on the solidarity and friendship with the Austrian colleagues and the Austrian sister company, Leo Ritter declared on behalf of GEMA and Max Butting on behalf of AFMA the willingness to unite the two companies and to found a new, single Reich German performance company. A resolution passed by a large majority, which the composer Hans Bullerian had formulated, praised the restructuring of GEMA in line with the new government and demanded the same for the GDT / AFMA. In the future there should only be a single professional organization for composers, namely the GDT, and a single economic organization, the GEMA.

Years 1933 to 1990

GEMA General Directorate Munich (since 1990), with the Erich Schulze fountain .

On September 28, 1933, the state-approved Society for the Exploitation of Musical Performance Rights (STAGMA), which emerged from the Association for the Protection of Musical Performance Rights for Germany (GEMA-AFMA), was granted the monopoly to exercise music performance rights. The institution for mechanical-musical rights from 1909 (AMMRE), which was still in existence at the time, was affiliated to STAGMA in 1938. The Reichsmusikkammer under its President Richard Strauss had stipulated in its guidelines in 1934 that “non-Aryans are fundamentally not to be regarded as suitable carriers and administrators of German cultural assets”. This meant the professional ban for the then 8,000 Jews organized in the Reichsmusikkammer. The STAGMA was firmly integrated into the National Socialist power structure and the leading members of the STAGMA were inveterate and voluntary National Socialists . The managing director of Stagma was Leo Ritter, who had held this position at the original GEMA since 1928 and who used to give away Hitler's Mein Kampf as a bonus for deserving employees.

After the Second World War , STAGMA continued its work, but from August 24, 1947 under the name GEMA, Society for Musical Performance and Mechanical Reproduction Rights. Erich Schulze was the board member and general director from 1947 to 1989, and GEMA dedicated the fountain of the same name to him in front of the general management in Munich. The composer Werner Egk was the chairman of the supervisory board from 1950 . Both Schulze and Egk had already held leading positions at STAGMA. To mark the 100th anniversary of the musical collecting society in Germany, the scientifically proven book Music Has Its Value by Albrecht Dümling was published . This presents in detail the development of copyright exploitation since the establishment of the “Law on Copyright in Works of Literature and Music” in 1902 and it illuminates the role of the collecting society after the time of the National Socialist dictatorship .

After the founding of the GDR and the division of Germany, as well as as a result of the currency division, the AWA ( Institution for the Protection of Performing and Reproduction Rights in the Field of Music ), a society with comparable tasks , was established in the GDR on April 1, 1951 .

In 1982 the association achieved income of 532.8 million marks from the GDR. After reunification and the announced plans to liquidate the AWA, numerous composers and lyricists from the former GDR joined GEMA. One of the people who were at the forefront of the reorganization of AWA-GEMA in 1989/90 was the Berlin composer Helge Jung . The AWA has been dissolved since 1990, but is still in liquidation as a company .

Years 1990 until today

In 1990 the CSU politician Reinhold Kreile took over from Erich Schulze . Towards the end of his term of office, he devoted himself to the fight against digitization. He described GEMA as a “lighthouse of culture” and “solid as a rock in the waves of digitization”. GEMA had successfully managed to avoid “nonsensical competition”. For him, the Internet is "nothing more than a virtual department store" that needs to be incorporated into a hostile takeover. At the end of 2005 he retired. In 2007 Harald Heker took over as chairman of the board.

In December 2019, GEMA took over the majority stake of 75.1% in the Berlin digital service provider Zebralution, including its subsidiary zebra-audio.net, which is active in the marketing of podcasts and audio books as well as other audio content. Zebralution operates as an independent company under the umbrella of GEMA and will keep its headquarters in Berlin. Sascha Lazimbat and Kurt Thielen, who founded the company in 2004 as the first digital distributor for indie labels, will remain managing directors. The majority stake was paid for from GEMA's liquid funds (working capital).

sales

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
Income in € m 801.4 810.5 812.5 813.6 806.2 852.2 874.4 849.6 823.0 841.1 863.0 825.5 820.20
Expenses in € m 116.9 117.9 118.7 119.4 116.0 120.3 121.7 120.3 122.4 128.0 127.1 123.2 127.9
Distribution amount in € million 684.5 692.6 693.8 694.2 690.2 731.9 752.7 729.3 700.7 713.1 735.9 702.3 692.3
Cost rate 14.6% 14.5% 14.6% 14.7% 14.4% 14.1% 13.9% 14.2% 14.9% 15.2% 14.7% 14.9% 15.6%
Effective distributions in € million
to the members		 302.8 317.9 312.0 354.3 328.0 334.5 312.3 325.6 322.9 334.5 299.7 - 316.5
to ordinary Members (approx. 3,400 in 2012) 57.6% 57.7% 58.4% 62.8% 58.8% 62.9% 62.3% 61.5% 64.7% 62.9% 64.2% 65.3% 65.16%
to legal successor (2012 approx. 4000) 7.6% 7.5% 7.9% 7.2% 7.7% 7.5% 7.8% 7.5% 7.3% 7.5% 6.8% 6.6% 6.4%
to extraordinary Members (2012 approx. 6,500) 9.0% 9.3% 8.2% 7.2% 9.0% 6.8% 5.8% 7.4% 5.8% 5.1% 4.8% 4.8% 4.2%
to connected Members (2012 approx. 53,000) 25.8% 25.6% 25.5% 22.8% 24.6% 22.8% 24.1% 23.6% 22.2% 24.5% 24.1% 23.3% 24.2%

GEMA's income is paid out to the rights holders (of which approx. 40% to members and 60% to other beneficiaries) after deduction of expenses. In 2012, an average of approx. € 60,000 was allocated to each full member, approx. € 2,060 to each extraordinary member, and approx. 1,400 to each affiliated member. The internal distribution within the status groups is confidential. In 2010, the legal successors included 33 persons (1%) in the group of ordinary members, 6 persons (0.1%) among the extraordinary members and 3,749 persons (6.9%) among the affiliated members.

The figures make it clear that the internal distribution of the remuneration of the group of ordinary members compared to that of extraordinary members has increased continuously, which is also a consequence of the increase in the number of affiliated members.

Reciprocity agreements

As of August 2015, GEMA has concluded reciprocity agreements with 76 foreign sister companies for performing and broadcasting rights. There are reciprocity agreements with 54 different collecting societies for mechanical reproduction rights.

A reciprocity agreement serves to grant reciprocal rights; The foreign collecting society transfers the performing and broadcasting rights as well as the reproduction rights of the entire repertoire to GEMA for the exercise of exploitation taking place in Germany, and GEMA in turn grants the foreign collecting societies the corresponding legal positions for their area.

The respective foreign society acts as a trustee for the collecting society: It has no influence on how and when the other collecting society distributes the royalties collected to its authors.

As of August 2015, GEMA represents over 2 million music authors from all over the world on the basis of a total of 153 contracts and maintains the data of more than 15 million works in its work documentation.

Internationally, the collecting societies have come together in umbrella organizations such as CISAC , which they also use to represent interests vis-à-vis governments, international organizations and the European Community.

Controversy

GEMA is often part of discussions about copyright , private copying , web radio and file sharing . In particular, the flat-rate charges for data carriers and devices for writing on these data carriers are being questioned, especially since buyers are often not clear about what rights they are acquiring with these amounts.

In an online petition initiated by Monika Bestle on May 19, 2009, artists and organizers demand a correction of the GEMA regulations with regard to better transparency, modified payment methods and other points of criticism. The petition was co-signed by 106,575 citizens and discussed on June 27, 2013 by the Petitions Committee of the German Bundestag. In the answer, it is first made clear that GEMA is not an authority and that the examination is therefore limited to whether there is a legal need for action and whether public control is functioning adequately. In addition, the Petitions Committee can only make recommendations that GEMA is not legally obliged to implement.

In the opinion of the Petitions Committee, there were no constitutional or association law concerns against GEMA as a collecting society. The Petitions Committee emphasizes the paramount importance of musical culture for Germany. This is all the more true in the age of globalization and the threat to copyrights from the Internet. The Committee on Petitions, however, has serious concerns as to whether the interests of those entitled, given the tripartite division of the members into ordinary, extraordinary and affiliated, are being adequately addressed. There is a very one-sided distribution of power in favor of the ordinary members. The Committee on Petitions does not assume that GEMA can solve this problem itself and is urging state supervision to intervene. Concerning. The petitions committee determines that the "PRO procedure" for accounting purposes has already been met by GEMA's abolition. The criticism of the PRO procedure is subsequently described as justified and criticized that state supervision did not intervene.

With regard to the tariffs for small organizers, the Petitions Committee cannot find any significant disproportionate, but advises GEMA to continue to work on improving transparency and to actively advise non-professional organizers of savings opportunities. The Petitions Committee recommends GEMA to reconsider its promotion of young talent and to relieve small organizers. It is also recommended to enable free streaming options on the homepage of young artists and to enable CC licenses. The Petitions Committee declares that it is not responsible for the comparison and the cooperation between GEMA at European level. In this regard, the petition should be forwarded to the BMJ and the DPMA. The Petitions Committee does not see sufficient evidence of misconduct on the part of the DPMA as the supervisory authority with regard to individual complaints, but recognizes structural and personnel deficiencies in the supervision. He therefore recommends relocating supervision to a federal regulatory authority and providing it with sufficient staff.

The German singer Barbara Clear sued GEMA because of alleged discrepancies in the 2009 accounts, but was unsuccessful in all points in the judgment, and Clear's appeal was rejected in full in 2010.

On May 28, 2010 it became known that two employees and ten members of GEMA were involved in a fraud scandal in which funds were paid out for events that had never taken place. Another fraud case against another GEMA employee in another case was pending at the same time. At a related press conference, Heker announced: "If such a system is circumvented by a high level of criminal energy, such a system is powerless."

In January 2011, GEMA sent a letter to 36,000 kindergartens on behalf of VG Musikedition , offering a flat rate for copies of copyrighted sheet music and lyrics. In the public and especially in Internet forums, GEMA was often portrayed as the author of the letter, claiming that “GEMA is warning kindergartens” or that a fee is now due for singing children's songs. In this process, however, GEMA only took on administrative activities for the smaller VG Musikedition.

In 2012, the organizer of the non-profit-making event Evoke decided not to admit contestants who are members of GEMA or other international collecting societies, as otherwise GEMA would have to pay license fees of € 4,500. This payment would put the event at risk.

Controversies with artists

A radio interview by the artist Sven Regener from the band Element of Crime in March 2012 caused a sensation. Regener railed against the free culture in the music business on Bayerischer Rundfunk and vehemently advocated strengthening copyright law and GEMA (Regener: " We are GEMA, the composers and lyricists ”). He accused copyright deniers of undermining the value of art. He also criticized YouTube, the video portal of the Internet company Google . Google earns billions, but is not prepared to give the artists some of its profits.

Controversy with YouTube

After a license agreement with the Internet video provider YouTube expired in 2009, no agreement was reached on new contractual terms. As a result, from March 5, 2009, access to many music videos with a German IP address was blocked.

In 2011, on the occasion of the failure to reach an agreement with YouTube, GEMA's website was twice targeted by Internet attacks by August 22nd. The Anonymous collective committed itself to both attacks and accused GEMA of exaggerated demands with regard to the license fees required for the videos accessed. During the first attack in June 2011, the GEMA server was paralyzed with a DoS attack . On August 22nd, the hackers directly attacked the content of the site and redirected it to a graphic referring to the dispute with YouTube. In addition, Anonymous was able to penetrate the internal company network and read user names with passwords, which were then published on Twitter .

Report of a video blocked by YouTube in Germany (after the agreement reached in October 2016, the report appears less often)

On April 20, 2012, the Hamburg Regional Court gave GEMA rights in the dispute against YouTube and ordered the deletion of seven video clips protected by copyright from the platform. On May 21, 2012, despite the success of the judgment, GEMA appealed because, according to GEMA, discussions that followed the judgment were still unsuccessful and the music collecting society does not see legal security for its members as guaranteed. In addition, GEMA demands more transparency from the Google subsidiary in the ongoing negotiations. YouTube also appealed against the April 20 ruling on the grounds that the "use of filters would affect innovation and freedom of expression on the Internet". As a result of this dispute, Gangnam Style, the world's most successful internet video to date (in the original version from July 15 to December 5, over 883.3 million “Views” and 5.6 million “Likes”, both world records excluding Germany) by the South Korean rapper was able to achieve this Psy cannot be viewed in the original version.

On December 16, 2013, YouTube competitors in the Association of Private Broadcasting and Telemedia (members e.g. MyVideo , Clipfish , tape.tv ) agreed with GEMA on a general contract that allows the platforms, among other things, to produce pieces of music by the artists represented in GEMA to have it available online against payment of a flat rate.

In 2013, YouTube was warned by GEMA with the demand to dispense with the controversial wording of its barrier boards with immediate effect. Until then, the barrier boards showed the following wording: "Unfortunately, this video is not available in Germany because it could contain music for which GEMA has not granted the necessary music rights." YouTube allowed the deadline for the warning to pass without comment Filed an injunction. The judgment of the Munich Regional Court on February 25, 2014 was in favor of GEMA and found the chosen wording to be misleading and blackening. The reasoning for the judgment states that the information is misleading because the average user understands it to mean that GEMA could grant the rights for the blocked videos, but does not do so. In May 2015, the Munich Higher Regional Court confirmed the judgment in the second instance. Afterwards, Google had the blocking boards displayed with the following amended wording: “Unfortunately, this video is not available in Germany as it could contain music that we have not yet been able to agree on with GEMA about how to use it. We're sorry."

On November 1, 2016, YouTube and GEMA announced that they had agreed on a new license agreement. In this way, the remuneration for music use was regulated retrospectively from 2009 and the videos of the musicians represented by GEMA were released again.

criticism

Carnival floats at the Düsseldorf Carnival 2013 with GEMA criticism

By 2012, the German Bundestag had received around 1,863 anti-GEMA petitions.

From the members' point of view

  • According to the terms of the contract, each member is obliged to register each and every one of his works, provided that public funding is to be expected. According to Section 1 of the GEMA Authorization Agreement (BerV), the authorized person grants GEMA, as trustee, extensive, exclusive rights of use to all of its existing and future works. It is no longer possible to publish individual works under a different (e.g. a free) license. It is also not possible to exempt non-commercial use, such as an “nc” variant of Creative Commons , as has recently become possible in France. In GEMA's view, it would then no longer be able to guarantee effective and economic rights management, which the EU Commission should understand (based on evidence and court decisions from 1971 to 1974). You can only terminate the rights management for individual legal areas ("divisions") and / or countries for all works and manage them yourself, for example excluding online music rights.
  • The usual contract period for nationals of the EU member states is three years. As a rule, works that have been registered once cannot be released again without further ado, as this is opposed to other contracts between GEMA and customers. The European Commission banned the original contract period of six years in two decisions from 1971 and 1972 due to the abuse of a dominant position, which was confirmed by a judgment of the European Court of Justice . For nationals of other countries, the contract period continues to be six years.
  • It is also criticized that there is a disproportion between income and distributions in the area of ​​the performance of popular music and music performances. GEMA explains the difference with the high input effort at these events. The so-called music sequences still have to be recorded manually and require a signature to be considered legally binding documents.

From the consumer's point of view

  • The public use of music and dance music GEMA is basically as long as a licensed use of pieces from GEMA's repertoire until the user of the music non-membership of the copyright in the GEMA or by a completed musical episode arc Public Domain occupied the works. In many cases, the public has therefore had the impression that GEMA would collect fees as a result, which it would not be entitled to in the absence of a contractual commitment. GEMA is thus practicing a legally sanctioned reversal of the burden of proof that is much discussed under the heading of the GEMA presumption . In the legal clauses of the Federal Court of Justice and the established case law, however, the term "light music" is regularly used as a designation for this type of music, which is authoritative or actually based on reciprocity agreements with domestic and foreign collecting societies almost exclusively the existence of the GEMA repertoires. GEMA can also exercise music copyrights from non-members, provided that they have actually authorized a collecting society to license their music in this way under the repertoire designation or through the tariff criterion "light music" (light music) of GEMA. Corresponding to this fact, the term “popular music” is to be regarded as a synonym for GEMA repertoire, so it causes a so-called actual presumption in the legal sense, which from the Gema point of view justifies a corresponding reversal of the burden of proof.

The use of musical works without a contractual relationship with collecting societies or with GEMA is subject, according to copyright law and customary practice, exclusively to the personal powers of the respective copyright holder and is therefore actually nothing to GEMA. The careless or calculated use of the term "light music" in court in such a context in licensing disputes with GEMA can lead to costly errors due to misunderstandings because the judges are required to assume that this type of music was actually used as long as one such factual statement was not rejected or denied.

From the perspective of streaming services

  • In 2019, GEMA increased its tariffs for online use twice: in January 2019 it increased its VR-OD8 (for "unlimited subscriptions") and VR-OD9 (for "ad-funded streaming offers") tariffs by almost 50%. In October 2019, it went up again and increased the VR-OD8 tariff one more time. As a result, GEMA now has to justify its new tariffs twice to the competent arbitration board under the Collecting Societies Act. The applicants for the proceedings are Bitkom eV and VAUNET eV, which represent the streaming services in the proceedings.

From the point of view of club operators and disco owners

  • In April 2012, discotheque owners were annoyed by GEMA with notices about the new fee schedule, as it provided for a cost increase of over 1000% for 2013 in some cases. GEMA does not deny that the new tariffs for some clubs, especially discotheques, may lead to fee increases tenfold, but it is of the opinion that these are isolated cases. The reason for the change in tariffs is GEMA's request for a simplification of the fee schedule, as well as a fairer distribution of organizer tariffs between cultural organizers and discos. Over the years, the discotheques would have paid significantly less than the cultural organizers and there was justifiably a lot of criticism of the subsidies against the discotheques, including from politicians. GEMA criticizes the one-sided presentation of DEHOGA , who would withhold the appropriateness rule, which is based on the actual number of visitors for the remuneration, in their lists. 60% of the organizers pay either the same amount or even less due to the new tariffs, replies GEMA. In particular, the smaller clubs would be relieved.
  • According to a table on the GEMA website, most tariffs for 2013 are given as lower, but a Frankfurt club with a size of 300 square meters currently pays around 8,000 € to 10,000 € per year GEMA fees, which is (with 300 calculated operating days) results in the amount of € 26.76 or € 33.33 per evening. In this case, the tariff increase would amount to 500%. According to the tariff calculator on the website of the Association of German Discotheques and Dance Companies, the increase is much higher. However, the theoretical maximum flat rate is specified in the flat-rate calculation examples provided by the association. In the case of the general calculation examples, the appropriateness rule is not applied, which offers every organizer the opportunity to use the actual number of spectators as the basis for the remuneration. Furthermore, the presumption in the media is getting louder that discotheques in particular do not want to settle accounts due to the number of visitors, as these were not previously checked and also not fully recorded.
  • The action alliance Kultur-retten.de - an action alliance of organizers, club operators, DJs, event agencies, musicians, dance schools, dancers, associations and music enthusiasts from all over Germany, from their point of view no longer ensuring that the GEMA tariffs are appropriate for 2013 - initiated an online petition on openPetition with over 305,000 supporters. This petition is the largest in German history to this day.
  • The Federal Association of Music Organizers uses an example calculation to show that, for example, for a club with two dance floors totaling 720 square meters and an entry fee of € 8, instead of € 21,553 a year, € 147,916 would be due (€ 405.25 per day). The fees would increase by 50% if the music performance ran for more than five hours. There would be a lot of model calculations. Accordingly, only one-off events such as shooting festivals and very small clubs benefit from the new regulation.
  • In the “Clubs am Main” initiative, more than 20 discotheque owners have come together to resist the new tariff system, as it would lead to the death of clubs, says Matthias Morgenstern, chairman of the club and owner of Tanzhaus West. According to the club , the annual payment of the Cocoon Club to GEMA would grow from € 14,000 to € 165,000. The “Travolta” assumes an increase from 10,000 € to more than 50,000 €. Tanzhaus West will then pay more than € 50,000 instead of € 1,500. The Berlin techno club Berghain states that from 2013 it would have to give up to 1,400% more than before to GEMA and is holding out the prospect of a possible closure.
  • On June 30, 2012, the Association of German Discotheques and Dance Companies demonstrated by exhibiting music in 500 clubs and discos from 11:55 p.m. to midnight. The managing director of the BDT discotheque association, Stephan Büttner, wanted to use this campaign to inform the guests about the effects of the new tariffs.
  • According to Ralf Scheffler, owner of the Batschkapp cultural center in Frankfurt , GEMA is assuming that the clubs and discotheques will have a maximum number of visitors. There was room for 2,000 visitors in his club, but mostly only 500 visitors were present. According to the new reform, however, he always had to pay for 2,000 guests, even if they weren't there. Scheffler would therefore forego disco events in the future, since in 2013 he would have to pay € 60,000 instead of € 3,000.
  • In a letter to GEMA, the head of the Berlin Senate Chancellery , State Secretary Björn Böhning , called for the plans to be reconsidered. According to Böhning, Berlin has a creative and innovative music scene for which clubs and concerts are important. As an important basis for the business, these would need affordable fee rates. Böhning asked GEMA to reconsider its demands.

German music author award

GEMA has awarded the German Music Author Award every year since 2009 . Under the motto “Authors honor authors”, the award ceremony will take place in Berlin in the presence of around 300 guests from music, culture, business, media and politics. The German Music Author's Prize honors composers and lyricists for the outstanding quality of their works - the award initiated by GEMA is awarded annually in ten categories, the winners are determined by an independent jury made up of composers and lyricists from various musical genres and producers. The prize for the young talent category is endowed with € 10,000. All other categories are undoped.

See also

literature

Web links

Commons : GEMA  - collection of images

Individual evidence

  1. ↑ a b c d e GEMA Yearbook 2015 ( Memento from November 5, 2016 in the Internet Archive ), section 2014 financial year
  2. ↑ Contacts www.gema.de .
  3. ↑ GEMA press release: GEMA closes the 2018 financial year successfully. GEMA homepage, April 16, 2019. Accessed April 29, 2019 .
  4. ^ Christian Schwerdtfeger: Street festivals: Gema wins legal dispute . In: RP ONLINE .
  5. ↑ a b GEMA - Society for musical performance and mechanical reproduction rights : music authors. In: gema.de. Retrieved September 2, 2015 .
  6. ^ GEMA - Society for Musical Performance and Mechanical Reproduction Rights: GEMA Foundation .
  7. ^ Nikolaus Turner: In the name of Maecenas for art. Art and culture promotion through foundations. In: the scales. Zeitschrift der Grünenthal GmbH , Volume 35, Aachen 1996, Number 3 (pp. 89–133: Foundations ), pp. 111–118, here: p. 118.
  8. ↑ a b GEMA - Society for musical performance and mechanical reproduction rights: GEMA. In: gema.de. Retrieved September 2, 2015 .
  9. ^ GEMA - Society for Musical Performance and Mechanical Reproduction Rights: Homepage . In: Website Title . 2nd September 2015.
  10. ^ A b Peter Mühlbauer: Copyright compensation or subsidy tax? In: Telepolis. May 9, 2001, accessed December 11, 2014 .
  11. ↑ My set lists: Submit music sequences for live events at home and abroad without paper. GEMA, accessed on January 12, 2020 .
  12. ↑ GEMA: Sonyatv Music and Solar continue cooperation - Uniform license for Europe-wide music use ; SOLAR Music Rights Management GmbH (Munich) Participation of GEMA and MCPSPRS.
  13. ↑ GEMA: subsidiaries : Aresa GmbH (Munich).
  14. ↑ SESAC appoints Alexnder Wolf as President , activities of the US collecting society SESAC on the German market.
  15. ↑ Background music in gastronomy and retail: GEMA and the Federal Association of Music Organizers reach agreement on tariffs ( Memento from June 22, 2017 in the Internet Archive ) Press release from January 12, 2016, accessed on May 4, 2017
  16. ↑ GEMA: WR-TEL remuneration rates from January 1, 2008, accessed on May 4, 2017.
  17. ↑ Good music for a good cause. Use of music in the social and voluntary area. GEMA, accessed on February 2, 2020 .
  18. ↑ Thomas Dreier in: Dreier / Schulze, Copyright , 5th edition 2015, § 52 Rn. 15, ISBN 978-3-406-71266-1 ; Haberstumpf in Mestmäcker / Schulze, commentary on German copyright law , status: 55th edition 2011, § 52 Rn. 19, ISBN 978-3-472-60160-9 ; Melichar in: Schricker / Loewenheim, Copyright , 5th edition 2017, § 52 Rn. 29, ISBN 978-3-406-72096-3 .
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  23. ↑ Albrecht Dümling: Music has its value. 100 years of musical collecting society in Germany. ConBrio, Regensburg 2003, ISBN 3-932581-58-X , p. 262 ff.
  24. ↑ Anniversary publication 30 years AWA from 1981.
  25. ↑ awa-current from 1990.
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  31. ↑ GEMA Annual Report 2011 ( Memento from September 26, 2015 in the Internet Archive ) (PDF; 603 kB)
  32. ↑ GEMA Annual Report 2012 ( Memento from September 26, 2015 in the Internet Archive ) (PDF; 673 kB)
  33. ↑ GEMA Annual Report 2010 ( Memento from September 26, 2015 in the Internet Archive ) (Last accessed: June 18, 2011; PDF; 580 kB)
  34. ↑ Number of the week: Numbers on the distribution of Gema income ( Memento from September 28, 2013 in the Internet Archive ) on wdr.de from September 24, 2013
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  36. ↑ German Bundestag : Petition: Civil Law - Society for Musical Performance and Mechanical Reproduction Rights (GEMA) of May 19, 2009 on epetionen.bundestag.de , accessed on January 4, 2011.
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  38. ↑ German Bundestag: Bundestag vote and justification at epationen.bundestag.de , accessed on January 2, 2016.
  39. ↑ News.de editorial team: Investigations: Gema fraud from its own ranks . In: News.de . May 28, 2010. Archived from the original on September 23, 2012.
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  44. ↑ Element of Crime: Rock musician Sven Regener settles with the pirate party. In: golem.de. March 23, 2012, accessed December 11, 2014 .
  45. ↑ Konrad Lischka: YouTube blocks music videos in Germany . Spiegel Online . March 31, 2009. Retrieved September 25, 2011.
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  57. ↑ Peter Mühlbauer: Federal government is not planning any changes in GEMA law. November 5, 2012, accessed December 11, 2014 .
  58. ^ Statement by GEMA ( memento of May 10, 2012 in the Internet Archive ) to Creative Commons Germany, January 23, 2012
  59. ↑ GEMA: Authorization Agreement .
  60. ↑ Reinhold Kreile, Jürgen Becker: GEMA Paragraph 5.2 Termination and Duration ( Memento from May 31, 2010 in the Internet Archive ) from Moser, Scheuermann (Ed.) The Handbook of the Music Industry ISBN 3-7808-0188-4 .
  61. ↑ Reinhold Kreile, Jürgen Becker, Karl Riesenhuber (eds.): Law and Practice of GEMA. Manual and commentary. Berlin 2005 ISBN 3-89949-181-5 .
  62. ↑ GEMA statutes ( memo of November 22, 2010 in the Internet Archive ) (PDF) in the version of 23/24. June 2009, § 3 No. 1
  63. ↑ § 13c Paragraph 1 UrhWahrnG; see. also Fromm / Nordemann, Copyright, 9th edition. Section 13b Probation Act, No. 1
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  67. ↑ IWW : Practice Tax Criminal Law - Typical areas of evasion in discotheques .
  68. ↑ Against the tariff reform 2013 - GEMA is losing sense of proportion - online petition . In: openPetition .
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