Interview with GEMA in-house counsel
Dr Tobias Holzmüller
This is a translation of the video interview which can be seen here.
How do GEMA members benefit from the new copyright?
GEMA members benefit from the new regulations because GEMA will be able to receive remuneration from platforms which had previously refused to pay remuneration in future. Going forward, it will also have a better negotiating position with platforms with whom we already have agreements. We will therefore achieve better remuneration levels. We hope to also receive better usage information for said remuneration which, in turn, is important in order to distribute the money to the people whose works have been used.
What changes now for GEMA members?
I do not think that there will be some sort of a big bang where a GEMA member will feel the difference right away. Why? Because we as GEMA had, of course, already concluded licensing agreements with major platforms previously. These licence agreements are not subject to change in the short term. They will continue to be in force. They will be re-negotiated. Then you are going to feel a gradual improvement of the situation but not a huge paradigm shift. This may be different for GEMA members who are also active in the field of neighbouring rights or other sectors. It is possible that they feel the change more. But I believe that there won’t be a major change from the perspective of a GEMA member in this first step.
Why were there such huge dissonances in the music business when it comes to the new law?
What you have witnessed in the last weeks and months is that there is a huge worry in the music sector to lose control over the use of one’s own works. You could definitely notice that there is a certain fear that works could be placed into a context which also puts the performers into a bad light, that it is of great importance that this type of usages can still be prohibited and prevented in future. This became strikingly evident with the fifteen-second-threshold which you could often read about. This led to the impression being created that anything that remains under 15 seconds cannot be prevented in principle and simply must be tolerated.
What united the music industry, or the entire music business sector was actually the worry that the rights of the creators would be restricted too much because of the fear of protests in public and a user community which has been creating a lot of pressure. As such, there were obviously differences in how this was expressed in the discussion. This is, however, also due to the fact that GEMA has, obviously, another task. GEMA has the task to license the rights of its members and to collect a fair remuneration, a remuneration which is as high as possible from the perspective of its members. This was our highest implementation priority so that we succeed in creating a real licensing obligation for the platform. From a perspective of an individual musician, there are of course other objectives such as not losing control over the work, keeping their prohibition rights, retaining the option to prevent certain exploitations from happening. And that is why the focus in the public discussion has been slightly different here.
New provisions: Moral rights
Moral rights are a key right for performers who, even if the exploitation takes place in a legitimate manner, they still have to be able to say: “I do not have to put up with this type of exploitation because it puts me into a bad light.” This is now implemented in the new provision. What this means is that it is clear now that even below the 15-second-threshold there is an effective legal protection mechanism so that performers can say: “I do not want this type of exploitation. Please take it off immediately.”
New provisions: Melody protection
With regard to melody protection which we already had previously in German legislation, we now have melody protection in the new regulation, and it is clarified that the use of a part of a melody from a work can never be a free use or an exploitation which is not subject to a licence. The 15-second-rule is thus linked to a remuneration obligation which means usages below fifteen seconds must be paid by the platform via collective management organisations who pay out these monies to the rightsholders. So, nothing changes for GEMA members initially.
With regard to the arrangement, it is clear that no new rights are created i.e. The arrangement of a work for the purpose of using it on social media is only possible in cases where a licence has either been granted or another limitation such as a parody or a caricature applies. I think we can deal with caricature and parody quite well. This is something we already had in German legislation in a different form back in the day.
New provisions: Limitations
We now get a new limitation under the pastiche headline. A notion which actually comes from performing arts and is breaking new ground for us in the music sector. On top of that, it is a notion which the German courts cannot define autonomously. Instead, one day, the European Court of Justice in Luxembourg will have to interpret it. So here we need to wait what actually becomes of this pastiche limitation in practice later. If you look at the German explanatory memorandum for the legislation, the view is taken that many uses which now would be subject to licensing such as remixes or samplings could be deemed to be pastiche. Whether the courts will follow this view, I am personally rather sceptical about that.
New provisions: Direct remuneration entitlement
The direct remuneration entitlement for creators and performers shall help those who have been participating in the proceeds from exploitation in the licensing chain inadequately up to now. For GEMA, the topic always had a subordinate significance because GEMA licences the exploitation rights of its members directly and thus generates a usage-based remuneration for all members. The discussion on the meaningfulness of this direct remuneration entitlement has therefore, in my eyes, been one that was rather at home in the sector for performing artists and film creators.
New provisions: Publishers’ participation in pay-outs
The second issue which was important to us was the legal protection of the publisher participation. This is something where you are aware how much internal efforts we have put in over the last few years. Efforts that have also been very strenuous for the members so that the publisher participation was put on a new footing. The legal flank is now closed.
The rules on the publisher participation ensure that the publisher participation in the form in which we have newly established over the last two years, also takes place on a secured basis under European law. As such, there will not be much change in terms of how GEMA carries out the publisher participation for the time being. This is no secret either, that we simply wished for an administrative simplification in particular when it comes to the work declaration process. Unfortunately, we could not achieve that. But we will continue to fight for this. The big step forward is, however, that we are on a legally safe road.
Summary of the reform
With respect to the DSM Directive, which is affected in this case, the goal was to adapt copyright to the digital single market, i.e. To modernise it and make it fit for digitisation. And what happened is that an entire bundle of measures has been combined in this directive, for different stakeholder groups, to strengthen the rightsholders, strengthen the user interests, strengthen the access rights of the public. And that then turned into this package DSM Directive. #00:00:56-6#
Of outstanding importance is of course the new regulation of the platform responsibility, i.e. liability of upload platforms, social media platforms such as YouTube, Instagram, Facebook and so forth for copyright which are used on the platform.