GEMA Vs. YouTube Hits The Three Year Mark As Rate Negotiations Fall Through Again

from the quite-possibly,-GEMA-hates-musicians,-Germans-and-anything-Google-related dept

It looks like the long-running dispute between GEMA, Germany's brutish performance rights organization, and YouTube isn't ending anytime soon. This licensing battle goes back to 2009, when Google's contract with GEMA ended and the German PRO asked for $0.17 per view, a rate Google claimed was "without comparison in the history of online music." (By comparison. YouTube was paying PRS, the UK performance rights group, $0.0034 per view in 2009.) GEMA countered that it had offered to take $0.01 per stream, but wanted YouTube to cough up more usage data in exchange for the cut rate.

Once this initial negotiation broke down, things went from frosty to litigious.
GEMA went on to sue YouTube in a 2010 test case for distributing copyrighted material without permission — holding it responsible for copyrighted material uploaded by its users. Then in April last year a German court ruled that YouTube must install software filters to prevent users uploading content whose rights GEMA holds.
After a couple of lawsuits, GEMA returned to the "negotiating" table, this time with an offer a bit more in line with reality.
Die Welt reports that GEMA wants the German Patent and Trademark Office to arbitrate on whether its proposed rate of 0.375 cents per stream is appropriate — but YouTube is arguing for a lower rate.
This doesn't really resemble a negotiation at this point. GEMA offers, Google counteroffers and all of a sudden, the home team's PTO is going to decide whether GEMA's preferred rate is "appropriate." But that's not all: GEMA is also suing YouTube to the tune (pun really not intended) of €1.6 million for the alleged unlicensed use of 1,000 songs from its catalog.

Not only that, but another German court is in the process of defining YouTube's role on the web, something that could potentially see YouTube remove itself entirely from Germany.
A Hamburg court is already arbitrating another row between GEMA and YouTube over how the platform should be defined. GEMA claims that YouTube is a content provider whose business model is built on content that is subject to royalties. YouTube, on the other hand, says it is a hosting service which simply makes space available to its users.
The push here is to remove any sort of "safe harbor" (such as it exists in German law) and hold YouTube entirely responsible for anything uploaded by its users. Framing YouTube as a content provider puts it right in the legal crosshairs, which is where GEMA wants it. Despite the efforts made by YouTube to curtail infringement, GEMA still wants to see it pay more.

Of course, GEMA's doing this "for the artists." And those artists must be thrilled, what with the world's most popular video streaming site serving up this message, rather than actual videos, all too frequently.


And wouldn't you know it, GEMA also has a problem with the message posted by YouTube, which has become visual shorthand for the German YouTube Experience.
GEMA is demanding that YouTube take down the on-screen notice blocking music videos in Germany that blames GEMA for the impasse. In November last year, GEMA head Harald Heker accused YouTube of deliberately misleading German users with the notice.

"The notice about GEMA is being posted wilfully, purely to stir opinion," he told WirtschaftsWoche magazine at the time. "YouTube is trying to awaken the false impression that the failure to license is GEMA's responsibility. That is simply wrong."
This sounds familiar. Those blocking or taking down videos for various violations seem to think that YouTube should keep them free from criticism, too. Considering YouTube has already negotiated licenses with various other PROs, including ASCAP and the infamous PRS, it certainly seems likely that GEMA's contentious relationship with, well, just about everyone, might have something to do with the "failure to license." GEMA can complain about the "impression" this message makes, but if it were solely up to Google, German citizens wouldn't be seeing this message at all. Here's Google's statement:
YouTube believes that rights holders and artists should benefit from their work. We have dozens of collection society deals in place across more than 45 countries because we provide an important source of income for musicians and a platform where new artists can be discovered and promoted. Music labels are generating hundreds of millions of dollars on YouTube every year. Artists, composers, authors, publishers, and record labels in Germany are missing this opportunity as a result of GEMA’s decisions. We remain committed to finding a solution with GEMA compatible with YouTube’s business model so that we can again provide a source of revenue for musicians and a vibrant platform for music lovers in Germany.
That's the crux of the situation. The artists, composers, etc. aren't just missing these opportunities -- they're not even being allowed to have these opportunities, thanks to GEMA's insistence on combative, hardline tactics. GEMA hasn't done much for the artists it "represents," but it's doing a great job turning Germany into a cultural island.

Filed Under: germany, licensing, pro
Companies: gema, youtube


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  1. identicon
    dramatic, 6 Feb 2013 @ 7:41am

    Why is everybody complaining about german copyright laws...

    It has nothing to do with the german copyright laws because they are nearly the same in every european country.
    They are brought out by the European Parlament and are mandatory for all members. There are some adjustments that the german parlament can do to them.

    The Problem is how Gema works.
    If you sign a contract with GEMA as an artist
    you can give them full rights so you dont have any left...
    or exclude different media where you want to keep your rights and publish yourself.

    BUT you only can exclude WHOLE media not parts of it.

    For example you could exclude the whole WWW. But the artists do not want that because the want to sell on iTunes so they give Gema the rights which enables GEMA to sue youtube in the case a song is uploaded there. It's not a copyright LAW problem but a GEMA CONTRACT problem.

    The biggest problem is that GEMA is so big you can not change the way it works anymore...

    they already tried because they can not support the Creative Commons License in the current configuration but they wanted to.

    Unfortunately it's not possible.

    I am German and I am OK with youtube blocking Music Videos in Germany. I dont youtube to listen to copyrighted Music anyway...just covers made by users.

    Gema is half as bad as BMG and the other BIG labels are. They block your videos even if there is just very quite background music that is copyrighted..

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