Law on the Mediation of Music Performance Rights

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Basic data
Title: Law on the Mediation of Music Performance Rights
Short title: STAGMA law
Type: Imperial Law
Scope: German Empire and Federal Republic of Germany
Legal matter: civil right
Issued on: July 4, 1933 ( RGBl. 1933, p. 452)
Entry into force on: 4th July 1933
Last change by: Ordinance of February 15, 1934
Expiry: January 1, 1966 in accordance with Section 26 of the Copyright Administration Act
Please note the note on the applicable legal version.

Through the law on the mediation of music performance rights of July 4, 1933, the mediation of musical performance rights was placed under the control of the Nazi state apparatus and the specially created association STAGMA was given a legal monopoly over it, which also significantly affected the music industry and case law of the post-war period has affected.

Law on the Mediation of Music Performance Rights of July 4, 1933

"§ 1 The commercial mediation of rights for the public performance of works of music with or without text (minor rights), for which the consent of the entitled person is required according to the legal provisions, is only permitted with the approval of the Reich Minister for Public Enlightenment and Propaganda. The conclusion of contracts for the exploitation of performance rights in one's own name, be it for one's own account or for someone else's account, insofar as this is not done by the author himself, is also deemed to be mediation. The approval can be revoked at any time.

§ 2 Contracts of the type specified that have been concluded by an intermediary not approved in accordance with § 1 are void.

§ 3 The public performance of a musical work subject to copyright is inadmissible if the music organizer is unable to prove the acquisition of the performance license upon request. Both the police and the authorized person can request proof. It must be carried out by submitting a written contract with the person entitled or by submitting a written declaration of consent. If the music organizer is unable to provide evidence, the police must either ex officio or at the request of the person entitled to prevent the performance.

§ 4 In the event that a contract on the amount of the performance remuneration is not concluded between an intermediary approved according to § 1 and an association of music organizers recognized by the Reich Minister for Public Enlightenment and Propaganda for the conclusion of such contracts, an equal arbitration board, the chairman of which is jointly ordered by the Reich Minister for Public Enlightenment and Propaganda, the Reich Minister of Justice and the Reich Minister of Economics is determined over the type and amount of the tariffs.

§ 5 The Reich Minister for Public Enlightenment and Propaganda can issue provisions for the implementation of this law. In doing so, he can cancel contracts of intermediaries who are no longer authorized in accordance with § 1, insofar as he considers it necessary for the implementation.

Berlin, July 4th 1933. The Reich Chancellor Adolf Hitler. The Reich Minister for Public Enlightenment and Propaganda. Goebbels "

(Source: Reichsgesetzblatt , year 1933, part I, page 452)

Shortly afterwards, by order of Joseph Goebbels, the “State-approved Society for the Exploitation of Musical Performance Rights” ( STAGMA ) was founded and given legal capacity . All previous music collecting societies then lost their authorization or were incorporated into STAGMA. In accordance with the ordinance for the implementation of the law on the mediation of music performance rights of February 15, 1934, only this was granted the monopoly right to mediate music performance rights.

Ordinance on the implementation of the Act on the Mediation of Music Performance Rights of February 15, 1934

"On the basis of § 5 of the Act on the Mediation of Music Performance Rights of July 4, 1933, the following is decreed:

§ 1 Stagma, a state-approved company for the exploitation of musical copyrights, a legally competent association by virtue of state awarding, has received approval in accordance with § 1 of the Act on the Mediation of Music Performance Rights of July 4, 1933, as the sole agency for the commercial mediation for the public performance of works by Exercise music with or without text (minor rights).

Stagma is entitled to collect claims against music organizers that have become due since October 1, 1933, in particular those arising from the contracts that the Association for the Protection of Musical Performance Rights for Germany (Music Protection Association) entered into before the law on the mediation of music performance rights of July 4th came into force 1933 or the Gema (cooperative for the exploitation of musical performance rights) and the cooperative of German sound composers jointly concluded after this law came into force. The amounts specified in Paragraph 2 are to be offset by Stagma with the beneficiaries and distributed to them.

§ 2 The arbitration board to be formed on the basis of § 4 of the Act on the Mediation of Music Performance Rights of July 4, 1933 consists of a chairman and six assessors. An author of recognized importance is to be appointed as chairman. Three of the assessors are appointed by the professional intermediary approved in accordance with Section 1 of the Law on the Mediation of Music Performance Rights of July 4, 1933. The three other assessors name the associations of music organizers recognized by the government in accordance with Section 4 of the Act on the Mediation of Music Performance Rights of July 4, 1933.

Section 3 If, in accordance with Section 4 of the Act on the Mediation of Music Performance Rights of July 4, 1933, the amount of the performance remuneration is determined by contract or an arbitration award, the agent authorized in accordance with Section 1 of the Act can claim damages for an unauthorized performance in the contract or an arbitral award, certain performance fees may be required.

Berlin, February 15, 1934 The Reich Minister for Public Enlightenment and Propaganda "

(Source: Reichsgesetzblatt , year 1934, part I, page 100)

With this ordinance , the law on the mediation of music performance rights ultimately became the “STAGMA law”. The NS state apparatus has given the STAGMA association both monopoly rights and legal capacity to broker music performance rights. Any performance of music in Germany could thus be checked and canceled by the police if the STAGMA company ordered by the Nazi party leadership could not be given permission . As a consequence, shortly after the seizure of power, the spread of music that was viewed as contradicting National Socialist ideology ( degenerate music ) was effectively prevented . However, the Third Reich could also rely on an outspoken denunciation . So even if unauthorized music performances could take place undetected, the organizers had to declare themselves afterwards to defend themselves against claims for damages against the STAGMA or before the legal arbitration board by submitting appropriate evidence. This situation has made it practically impossible for composers who did not want to subordinate their musical works to the stipulated control and exploitation apparatus of STAGMA to perform their musical art at public events. And whoever had to identify himself as the organizer of NS-ideologically undesirable music had to expect not only police controls at future events, but also “relevant” visits by the SA .

From the STAGMA monopoly of the NS state to the GEMA assumption of the post-war period

After the defeat of the Nazi dictatorship , the monopoly entitlement prescribed by the "STAGMA Act" was initially significantly abolished by the legislation of the supreme commander of the Allied military government:

"All provisions of German law that prescribe the review, approval and authorization by the said ministry ( Reich Ministry for Public Enlightenment and Propaganda ) , the subordination under its direction or the compliance with the instructions and orders of the said ministry are repealed."

(Source: Military Government of Germany , Control Area of ​​the Supreme Commander, Law No. 191, No. 3., of November 24, 1944, amended on May 12, 1945)

STAGMA continued its work after the Second World War , however, as an economic association "by virtue of state award", but from August 24, 1947 under the name " Society for musical performance and mechanical reproduction rights " (GEMA).

The news magazine “ DER SPIEGEL ” drew attention to this practice, which had apparently been taken over from the Nazi state without any rule of law control, in an article entitled “royalties” on July 4, 1951. The "Goebbels child" had achieved their monopoly position as an "only authorized association" through a "coup d'état" by the Nazi propaganda minister. Every composer would have to “starve” to death without significant collaboration. The “business conduct and the GEMA fee schedule” must finally be “subject to a certain amount of control”.

With regard to the controversial question of maintaining the monopoly rights of the STAGMA successor GEMA over the exercise of musical copyrights , the Federal Court of Justice first recognized in the judgment of BGH I ZR 143/52 of 30 November 1954 that the compulsory approval for the mediation of music performance rights within the meaning of Law of July 4, 1933 was repealed by paragraph 3 of Law No. 191 of the Military Government. The sole authorization (monopoly position) granted to STAGMA (now GEMA) in accordance with Section 1 of the Implementing Ordinance of February 15, 1934 to broker performance rights of the type in question thus became irrelevant.

The Federal Court , however, (BGH) decided shortly afterwards as part of another judgment BGH I ZR 178/53 of 24 June 1955 that the legal assessment of a monopoly position called into question by GEMA for perception of musical performing rights a "if not legal, yet actual monopoly position " speaks for it, as it would already correspond to " the constant jurisprudence of the chamber court (for the legal situation before the war see KG Ufita 1939,133) " . Because according to the aforementioned judgment KG 27 U 3233.38. November 24, 1938 states: "There is a presumption that the performance rights are in the hands of the STAGMA." It would in fact almost all composers ( composers ) their performing rights "and to the future creations of the law alone for the exploitation of music Have transferred performance rights to an authorized agency ” , so that they would also be subordinate to STAGMA in the future as the sole agency appointed for this purpose.

The BGH has therefore used a "forward-looking" court ruling from the permanent jurisprudence from the time of the millennial Reich as a measure to revive a monopoly position in favor of GEMA, the reasons for which, however, are directly owed to the legal status of the unique selling point of the STAGMA legislation, which was just dated from BGH itself had to be judged as irrelevant due to the provisions of the Allied laws.

By simply assuming a supposedly unchanged fact from the past in this way, the Federal Court of Justice was able to circumvent the measures it had initially issued itself, even in the absence of current law. Musical performance rights are therefore still consistently in the hands of the same company, which is now to be designated as GEMA, even after the legal sole authorization of STAGMA has been lifted. The BGH has thus unceremoniously recognized an allegedly unchanged, comprehensive right to exercise GEMA as a fact , although music composers would now be completely free whether they want their performance rights to be represented and controlled by them or not. According to this judgment, the musical art of outside composers is still or again to be considered involuntarily subject to GEMA or its control apparatus. As before, mere speculation against organizers can lead to coercive measures through state violence, but now through the federal German civil law, even without a legal basis. The jurisprudence derived from this landmark judgment of 1955 is known today as the “ GEMA presumption ”.

An alleged or generally presumed monopoly position of GEMA has thus been regularly and continues to be a "GEMA presumption" by the German civil courts for the more than 60 years after this BGH decision and the more than 70 years after the significant repeal of the STAGMA legislation applied to judicial decision-making. Although constitutional standards are so overridden and that once this crucial fact of whatsoever monopoly GEMA in the performance of musical performing rights should no longer apply today with certainty who wanted federal government one with 62,842 Mitzeichnern very successful also in consideration petition in In 2012, do not take any action against it. Today's GEMA continues to be granted, on a purely presumptive basis, a special authority staged by the supreme court for business monopoly claims, although the basis of this goes back directly to the "STAGMA legislation", i.e. in connection with the STAGMA monopoly position that arose from the injustice system of the Third Reich.

Individual evidence

  1. ^ Reference: Reichsgesetzblatt, year 1933, part I, p. 452.
  2. ^ Reference: Reichsgesetzblatt, year 1934, part I, p. 100.
  3. ↑ Laws and Orders of the Military Government up to June 30, 1945
  4. ↑ DER SPIEGEL 27/1951, article “Royalties - GEMA is to blame for everything” from July 4, 1951, pp. 29–32.
  5. ^ Federal Court of Justice ruling v. November 30 , 1954 , Az .: BGH I ZR 143/52 References: BGHZ 15, 338–356 and NJW 1955, 382–348.
  6. ^ Federal Court of Justice ruling v. June 24, 1955, Az .: I ZR 178/53 References: BGHZ 17, 376–386 and NJW 1955, 1356–1357.
  7. ^ Reference: Legal journal "Archive for Copyright, Film and Theater Law" Ufita 1939, 133.
  8. ↑ "GEMA presumption I": Federal Court of Justice ruling v. 05.06.1985, Az .: I ZR 53/83 References: BGHZ 95, 274–284 and NJW 1986, 1244–1247.
  9. ^ "GEMA presumption II": Federal Court of Justice ruling v. June 13, 1985, Az .: I ZR 35/83 References: BGHZ 95, 285–294 and NJW 1986, 1247–1249.
  10. ^ "GEMA presumption III": Federal Court of Justice ruling v. 05.12.1985, Az .: I ZR 137/83 References: NJW 1986, 1249–1251 and AfP 1986, 169.
  11. ↑ "GEMA presumption IV": Federal Court of Justice ruling v. October 15, 1987, Az .: I ZR 96/85 Locations : NJW 1988, 1847-1850 and AfP 1988, 185.
  12. ↑ Music pirate judgment AG Frankfurt, judgment of 27.08.2012, 32 C 1286 / 12-48, GEMA presumption. References: ZUM-RD 4/2013, 211–213 and JurPC Web-Doc. 173/2012, paras. 1–36.
  13. ^ Petition 35441 Copyright - Repeal of the so-called GEMA presumption of August 28, 2012