German Collections Society Trying To Collect For Performances It Has No Rights Over
from the how-it-all-works dept
The various music collections societies always like to present themselves as being there “for the artists.” When we write about ASCAP in the US or PRS in the UK, we often get angry emails from supporters of those groups (or individuals who work for them) insisting that what they do is all to support the artist, and we should go pick on the record labels or something instead. Yet, that’s misleading. These organizations always seem to keep looking to expand their collections duties, often at the expense of any other business model. Take, for example, what’s happening in Germany, with its collection society, GEMA (which is separately battling YouTube over music videos). You see, like so many of these collections societies, GEMA works on the principle of “guilty until proven innocent.” We’ve seen this with ASCAP and BMI as well — where they insist that anyone who plays live music has to prove that none of it is covered by the collections society.
In the case of GEMA, unfortunately, German courts have agreed. The burden isn’t on GEMA to prove that GEMA-covered music was performed — but on the accused to prove that no GEMA-covered music is performed. Now, Wolfgang Senges alerts us to a rather ridiculous scenario. There’s a startup, Jamendo, which has received a fair amount of press coverage, for offering a place for musicians to offer up their music under a Creative Commons (or similar) license. Artists uploading their works who want to offer a commercial license option (on top of the free option) have to show that they are not covered by a collections society like GEMA. As part of the commercial offering, Jamendo offers up a license showing that the music is not covered by GEMA. This is so that any establishment using Jamendo-licensed music can “prove” that the music wasn’t covered by GEMA.
But, here’s the fun part. According to Senges, GEMA refuses to recognize the license. That is, if you’re a business that specifically licensed all the music you use from Jamendo, when GEMA comes calling to demand a blanket royalty fee, you should be able to show GEMA the license from Jamendo, showing that the music you play is not covered by GEMA and thus GEMA has no right to collect. But, GEMA refuses to recognize the license, and insists that every performance requires the venue/artists to fill out GEMA’s forms about every song, to show that it’s not covered by GEMA, or the group insists it has the right to collect, thanks to a legal ruling that states:
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.
Oh, and lest we forget, it appears that even if you do fill out GEMA’s own forms listing out all the non-GEMA music you played, you have to pay GEMA to file the forms. So… you end up paying no matter what.