Publishers’ participation in pay-outs
Following a decision by the Berlin Higher Regional Court in the matter of publisher participation dated 14 November 2016 (Az./file no. 24 U 96/14), publishers are currently called upon to confirm the legal relations with their authors vis-à-vis GEMA with regards to the works they represent. From 1 February until 1 December 2017, publishers may submit the necessary information and documentation to GEMA via the ECP.
GEMA has set up an Electronic Confirmation Process (ECP) for the joint rights administration of authors and publishers which will be available from 01 February 2017 at www.gema.de/ecp. Publisher members can choose this process to provide evidence and confirmations on a share-per-work basis for the repertoire published by them that they have assigned the relevant rights to GEMA themselves, or that a participation has been agreed with the author, and submit the required documents.
On 24 December 2016, an amendment to the Act on Collective Management Organisations (VGG / CMO Act) in relation to the participation of publishers came into force. It allows GEMA to let authors and publishers jointly participate in exploitation rights again in future, irrespective of the rights flow. In its December 2016 meeting, the Supervisory Board had supported that the legal relationships between author and publisher with regards to payments on a share-per-work level should be verified individually, and had thus decided that the ECP should be set up. The ECP will also be necessary in future, after the amendment to the law, as the law does not affect the past.
Publishers can only keep their payments received since July 2012 until the amendment to the law entered into force on 24 December 2016 if they have submitted the relevant evidence via the ECP. Furthermore, the express permission of the author for the participation of the publisher must be presented in the ECP in future. GEMA recommends that its members obtain and submit the relevant declarations even for future payments in relation to exploitation rights in order to avoid any residual risks.
Pursuant to Art. 27a VGG (CMO Act), an express consent of the authors is necessary for a future participation of publishers in the statutory remuneration claims. In order to be able to continue the well-established cooperation between authors and publishers, authors must therefore grant the publishers an express consent and the publishers must submit this confirmation to GEMA.
Following the amendment to the Act on Collective Management Organisations (VGG/CMO Act), GEMA has - since 24 December 2016 - been allowed to participate authors and publishers again in exploitation rights in future just as before - jointly and irrespective of the rightsflow. GEMA does, however, recommend in order to avoid any residual risks, to collect a confirmation declaration nevertheless and to submit it to GEMA via the ECP.
Regarding the past, the legal situation based on the decision of the Higher Regional Court Berlin dated 14 November 2016 continues to be in force. Publishers may therefore only keep their payments received since July 2012 until the amendment to the law entered into force on 24 December 2016 if the author has expressly consented to this in a confirmation declaration.
By way of the ECP, GEMA offers its publishers and authors a standardised process which simplifies the confirmation of the publisher participation. Carrying out the ECP is also absolutely essential in order to avoid a reversal or clawback of past pay-outs. By way of using template forms such as the confirmation declaration and the standardised query for mandatory information in the ECP, the forthcoming data volume can be processed better and faster.
With immediate effect, publishers can download electronic work lists at www.gema.de/ecp via the ECP and enter the necessary details on the legal relationships between authors and the publisher. From 01 March 2017 onwards, the completed lists can be submitted to GEMA together with a declaration of indemnification which the publisher will have to issue, and the respective confirmation declarations, via www.gema.de/ecp.
If you are an author of a published work, you can contact your publisher and - as long as this is in line with the agreement you have in place with said publisher - confirm to them that you would like a continuation of the publisher participation. Whether a publisher is entitled to receive such a confirmation declaration for pay-outs in relation to exploitation rights and statutory remuneration entitlements depends on the provisions and circumstances of your publishing agreement.
If you are a publisher, now is the time for you to act. This applies:
a. if you directly assign rights to GEMA as a publisher. In such cases, you must provide evidence and confirm in future that you have assigned such rights to GEMA yourself/directly.
b. if you have entered into an agreement on your participation as a publisher. In such cases, you must check the agreement in place with the author or agree on and provide a confirmation declaration with the author. As a result of the court decision, GEMA is no longer allowed to make the general assumption that such agreements between publishers and composers have been entered into. GEMA is providing a template for such a confirmation declaration at www.gema.de/verlegerbeteiligung.
ECP-Hotline: +49 30 21245-600 (Monday to Friday: between 11.00 and 15.00)