European Trade Committee Chair Defends Continued Secrecy On ACTA

GEMA, Once Again, Demands Royalties From Creative Commons Music It Has No Rights Over

from the entitlement-society dept

Mon, Nov 14th 2011 7:37pm — Mike Masnick

For years, we've covered how GEMA, the German music collection society, has a habit of demanding royalties for Creative Commons music it has no rights over. We've heard of it happening multiple times, and now it's happened again, and the details are even more ridiculous than usual. In this case, a music festival/dance party in Leipzig planned to use only Creative Commons music. Not only that, but the organizers appeared to go above and beyond to make sure this was done properly, not just making it clear to the DJs, the public and all attendees, that only CC music would be used, but they also let GEMA know. In response, GEMA demanded the full list of all artists whose music would be played, including their "full names, place of residency and date of birth."

After all that, GEMA still sent an invoice for 200 euros, claiming that they weren't positive everyone on the list wasn't covered by GEMA, and because there were a few pseudonyms, those musicians might be covered by GEMA... and thus the organizers should pay up. And, under the rather ridiculous current law in Germany, the organizers have the burden to "prove" that all of the artists are not covered by GEMA, rather than having GEMA prove that any particular artist is covered. That means, even if the organizers were correct and none of the artists are covered by GEMA, it still doesn't matter, because the organizers have to go out and prove that each individual artist is not under GEMA's umbrella. And people wonder why the Pirate Party is getting so much attention in Germany.

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Filed Under: copyright, creative commons, germany
Companies: gema

19 Comments

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Anonymous Coward, 14 Nov 2011 @ 7:57pm

Re the law in Germany you speak about, is there a cite to it? What you say does sound counterintuitive.
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Anonymous Coward, 14 Nov 2011 @ 8:17pm

IP holders should hold at least an equal burden to ensure that takedown requests and requests for money are on content that they do hold privileges over.

But, unfortunately, everyone else has a much greater burden to magically detect infringement than IP holders have to publicly inform everyone (ie: by opting into some centralized database) that their content is covered by these privileges (since it is a much greater burden for others to know what constitutes infringement than it is for an IP holder to know) and everyone else has a much greater burden of policing infringement than the burden that the IP holder has to ensure that his takedown notices and requests for money are valid (ie: infringement is subject to much steeper penalties than falsely claiming privileges over something one has no privileges to).
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Nigel (profile), 14 Nov 2011 @ 8:19pm

Collection

Copyright societies that collect royalties as part of compulsory licensing in the European Union (EU) usually hold monopolies in their respective national markets.[8] In Germany, case law has established the so-called GEMA Vermutung, a presumption that works are managed by the Gesellschaft f�r musikalische Auff�hrungs- und mechanische Vervielf�ltigungsrechte (GEMA) due to its monopoly position.[9] As such, in Germany the burden of proof is on the accused infringer that the work is not managed by GEMA.

Sorry, not a fan of posting stuff from wikipedia but my German is non-existent.

Nigel
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That Anonymous Coward (profile), 14 Nov 2011 @ 8:22pm

Because we said so!

It worked for ICE.
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xenomancer (profile), 14 Nov 2011 @ 8:51pm

Ruining Another Industry
Why are they using Creative Commons music when they should be supporting the incredibly hard working artists' labels, collection societies, copyright attorneys, random pop-rocks vendors, and everyone else who doesn't actually contribute to our culture. I feel as though these income leeching harpies need to be smothered to be removed, much the dug-in ticks they are. Even after they're supposedly removed, they're infecting the activities of others who want nothing to do with them with an arbitrary tax on entertainment; the product of an unholy matrimony of laziness and abdicated culpability. I am loathe to ever contribute to these maleficent weasels through any means again. They are the ruin symptomatic of a fundamental cognitive defect: the attempt to remove the personal choice to engage in basic human nature, the drive to spontaneously communicate novelty through abstraction. These cretins are incapable of original thought let alone restraint and should be shunned and branded with a scarlet F.
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Anonymous Coward, 14 Nov 2011 @ 8:59pm

DEM ORGANISERS ARE KILLING OUR COLLECTION INDUSTRY!
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Anonymous Coward, 14 Nov 2011 @ 10:12pm

Re:
I am not at all sure that the term "burden of proof" is being used correctly here. As best I can determine, and I readily admit that though a US attorney I am most certainly not well versed in German law, "burden of proof" appears to relate to the obligation of the rights management organization to accept representation of a rights holder, and not that a rights holder has the burden to prove that it is not being represented by the rights management organization.

I could be mistaken, but this is my understanding based upon reviewing pertinent chapters in two books directed to rights management in Germany.
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Anonymous Coward, 14 Nov 2011 @ 11:23pm

Re: Re:
Let's put it this way: it is damn near impossible NOT to be represented by GEMA if you're a musician in Germany. As I understand it, there is no legal way to remove yourself from their list. Just another way for labels to defraud artists.
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Anonymous Coward, 14 Nov 2011 @ 11:30pm

Re: law in Germany
It's called the "GEMA-Vermutung" (GEMA-Assumption). They simply assume that all musicans are GEMA members and you have to pay them if you play music in public/commercially. It's up to you to prove that the GEMA has no right to do so by stating composer, texter, editor sometime the label for every song played. This also holds for music produced outside germany. if it's not possible to determine clearly that the music is non GEMA-free it's assumed that the music is in the GEMA-Repertoire.

This is a rough translation from: http://de.wikipedia.org/wiki/GEMA-freie_Musik#GEMA-Vermutung

These are the relevant paragraphs (german):

http://dejure.org/gesetze/UrhWG/13c.html
http://dejure.org/gesetze/UrhWG/13b.html
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Anonymous Coward, 14 Nov 2011 @ 11:31pm

Re: Re:
Regardless, I think an important point is that the German legal system doesn't do enough to sufficiently deter organizations like GEMA from initiating bogus legal threats and demanding money that they shouldn't be demanding.
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Rikuo (profile), 15 Nov 2011 @ 2:32am

I'd like for the copyright supporters to try and defend this. Or the people who constantly say just stop buying label music.
What are we to do when people here make every effort to not use label music, to not use anything that is copyrighted, but are still told to pay anyway? What are people to do when most of the cost of a blank CD in Canada is to "compensate" copyright holders for the inevitable infringements the purchasers of the CDs will no doubt do (despite the fact that this is punishing someone without even so much as accusing them; at least with SOPA and the DMCA, there is at least an accusation).
What are we to do when the legal situation is so twisted that copyright holders can demand rents from people who want ABSOLUTELY NOTHING to do with them?
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btrussell (profile), 15 Nov 2011 @ 2:41am

Re:
It is obvious isn't it?

Break the law.
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Masquisieras, 15 Nov 2011 @ 3:54am

Re: Re: law in Germany
Spain have something similar but here you only have to prove that the assumption is false so you only need to probe that you are able to get and are using no collection agency music then is the collection agency which must prove the specific cases of infringement.

How is different in Germany?
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Anonymous Coward, 15 Nov 2011 @ 10:54am

I wonder who will be the first country to abolish collection societies those are not useful.
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Bergman (profile), 15 Nov 2011 @ 12:19pm

Re: Re: law in Germany
Even the musicians have to prove they aren't with GEMA, in order to play their own compositions live, going by a couple things I've heard...
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Anonymous Coward, 15 Nov 2011 @ 8:58pm

Nina Nailed It
GEMA = German Entitlement Music Authoritarians
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John Weitzmann, 17 Nov 2011 @ 2:12pm

GEMA is right (unfortunately), the reporting is the problem
As some already pointed out, German courts have developed the "GEMA presumption" some decades ago in order to help artists get their royalties, which would otherwise be spent proving GEMA's rights to collect (at times when GEMA actually represented the world's repertoire in Germany; and the prerequisites for reporting made sense before the internet came along). One has to provide playlists with names and addresses of composers and texters, because that's who GEMA represents and those are not necessarily the ones playing the music. Some people just send over lists of bands and titles and links to archive.org and stuff, and are surprised that this is not enough. GEMA cannot properly check that kind of data and then has to collect, they would otherwise violate their own bylaws.
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dvc05, 10 Feb 2012 @ 1:38am

Corruption
Funny thing is, payment for services or materiel for which the recipient is not due under law, is the textbook definition of corruption...
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dvc05, 10 Feb 2012 @ 1:39am

Corruption
Funny thing is, payment for services or materiel for which the recipient is not due under law, is the textbook definition of corruption...
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