In recent times, we have received an increasing number of queries regarding the impact of these amendments regarding the rights management and the consequences of a potential objection to the expansion of the remit of the Deed of Assignment. Against this background, we have collated a few answers to the most frequently asked questions.
Which provisions will apply regarding the synchronisation rights for UGC platforms according to the new Deed of Assignment?
From now on, a distinction is made in the Deed of Assignment between commercial and non-commercial uses when it comes to granting synchronisation rights for UGC platforms:
- For non-commercial uses, the synchronisation rights shall always be granted by GEMA.
- For commercial uses, the new provision does, however, provide the option that rightsholders can object to the rights management by GEMA regarding each individual UGC platform or, across the board, for all UGC platforms (“opt out”).
Details regarding the limitation between commercial and non-commercial uses are governed by separate rights perception conditions which you can access via our website.
Can I, in individual cases, also take action against the use of my works in UGC contents or do I lose this option if I do not object to the amendments of the Deed of Assignment?
A “take down” option in individual cases will remain in future, via various ways:
- This new provision explicitly clarifies in Article 1 i (4) paragraph 3 of the Deed of Assignment that the rightsholders shall always retain the “right to take action in their own name against violations of their moral rights”, also regarding UGC exploitations.
- Rightsholders often also have the option to launch a take down on the basis of master rights, for example.
What level of licensing income can be expected from the granting of the UGC synchronisation rights and graphic rights and will this income be distributed?
We cannot provide any details on this issue at this time since we cannot pre-empt the decisions of the governing bodies. In general, GEMA is required to differentiate according to the scope of the rights perceived during licensing and distribution.
When is the deadline for lodging an objection?
The deadline for objections ends on 09/02/2021.
Can a publisher lodge an objection against the amendments of the Deed of Assignment on behalf of/for the authors represented by the publisher?
No. This is due to the fact that the Deed of Assignment governs the entire legal relationship of the rightsholder with GEMA and also affects unpublished works or works published with other publishers. As a consequence, GEMA will reject any objections lodged by publishers on behalf of authors.
Do the new regulations regarding the synchronisation rights affect all online exploitations or uses of my works?
No. The new regulations set out in Article 1 i (4) of the Deed of Assignment only affect the synchronisation rights for uses on so-called “services for sharing online contents”. These are platforms such as YouTube, Instagram or TikTok, which, on a large scale, make available the contents uploaded by end users. In many cases these contents are produced directly by the end users themselves by using pre-existing works (so-called “user generated content” = UGC). Uses on streaming platforms such as Netflix, among others, are not affected by the new regulations.
Do I retain the synchronisation right for UGC uses if I object to the amendments of the Deed of Assignment?
No. If the rightsholder objects to the amendments of the Deed of Assignment, the previous provision regarding synchronisation rights continues to apply. According to this, the synchronisation rights are already comprehensively held by GEMA pursuant to Article 1 i paragraph 1 of the Deed of Assignment, even though this is subject to a so-called resolutory condition. So that rightsholders can license the synchronisation rights themselves, they have to inform GEMA in each individual case and in writing that they wish to perceive the synchronisation rights in their own name. The declaration must refer to the use for the synchronisation of a specific film work and must be submitted within a period of 4 weeks from the point in time where the rightsholders, in each individual case, have become aware of the use of their works.
Insofar as rightsholders object to the amendments of the Deed of Assignment, this provision continues to apply; it may make sense for the synchronisation of commercial films but is not practicable for mass uses on online platforms such as YouTube, Instagram and Tiktok. In practice, this has so far led to film synchronisation rights for private uploads to online platforms regularly remaining unlicensed.
Do I have to object to the amendments of the Deed of Assignment if I want to license the synchronisation rights for commercial content on UGC platforms myself?
No. If rightsholders wish to license the synchronisation rights for commercial contents themselves but to have GEMA administer such rights for non-commercial contents, they should rather agree to the amendments of the Deed of Assignment. The new scheme does, in fact, enable such a differentiation. Under this new scheme, rightsholders have the option to revoke the synchronisation rights for commercial UGC contents with regard to each individual platform (“opt out”). A general revocation or withdrawal of rights for all UGC platforms is also possible. At the same time, GEMA can issue a blanket licence for the synchronisation rights of non-commercial content under the new scheme; this is not possible under the current version of Article 1 i of the Deed of Assignment since this provides for a laborious case-by-case review.
Can I object to the amendments of the Deed of Assignment only in relation to the perception of the synchronisation rights for commercial UGC contents?
No. Such a differentiation is not possible. An objection against the amendments of the Deed of Assignment is, in this case, not even necessary, since the rightsholders have the option to revoke the synchronisation rights for commercial UGC rights under the new scheme, either in general or for individual services/providers (see previous question).
How does the rights revocation for commercial UGC work under the new scheme? Is there a deadline?
Details of the rights clearance for synchronisation rights for UGC platforms are governed by the rights perception conditions, which you can access under the following link on our website.
In order to enable rightsholders to make a decision on the rights revocation, GEMA will notify them in advance about the forthcoming conclusion of a licence agreement for a UGC platform. The information shall be provided via the GEMA website. The deadline for submitting the rights revocation declaration with respect to individual services or providers shall be 4 weeks from the publication of the information by GEMA that it intends to license the synchronisation rights for this service/provider. In principle, a blanket rights revocation for all services can be declared at any time and shall then, in each case, comprise all services with regard to which GEMA has not made an announcement at least 4 weeks before the declaration of the rights revocation that it intends to license the synchronisation rights for commercial UGC.
Unlike in the case of the objection to the amendments of the Deed of Assignment, the rights revocation can also be declared by publishers on behalf of the authors they represent. Publishers which have been authorised by several authors to issue the rights revocation, can declare the revocation jointly for the works of all the authors they represent or limit the declaration on the works of individual authors. A rights revocation for individual works or uses/exploitations is, however, not possible.
Does GEMA also license the synchronisation rights for commercials and advertising on UGC platforms under the new scheme?
No. The right to allow the use of a work for advertising purposes shall always remain with the rightsholder. This has been separately stipulated in Article 1 k of the Deed of Assignment and will not be changed by the new version of the Deed of Assignment. A rightsholder may therefore also take individual action against all unlicensed advertising exploitations of his or her works on UGC platforms.
I have already licensed my graphic rights in the lyrics. What happens if I do not object to the amendments of the Deed of Assignment with regard to the lyrics?
Licences that have already been granted shall not be affected by the amendments of the Deed of Assignment and shall retain their validity. In the case of future licence agreements, the graphic rights, however, shall be administered by GEMA if you do not object to the amendment of the Deed of Assignment.
I consent that GEMA licences the synchronisation rights for UGC contents but wish to continue to administer my lyrics on an individual basis. How can I ensure that this is the case?
In that case, you can lodge an objection that is limited to the amendment of Article 1 h paragraph 2 last sentence of the Deed of Assignment. This is where the administration of the graphic rights in the lyrics is stipulated.
Can I change my mind later if I do not object to the amendments of the Deed of Assignment now?
In that case, the new provisions shall become part of your individual Deed of Assignment. (Partial) terminations of the Deed of Assignment are possible within the framework of the usual provisions to the end of each year.
Where should I send my objection?
Please send objections to the following address: email@example.com.
What happens if I object to the amendment of the Deed of Assignment?
The new provisions regarding the graphic rights and the synchronisation rights for UGC platforms will, in that case, not become part of your individual Deed of Assignment. This has particularly the following consequences:
- The graphic rights in the lyrics are, within the terms of the Deed of Assignment, an independent type of use not yet perceived by GEMA. GEMA is therefore not going to administer those rights for you.
- With respect to the administration of the synchronisation rights vis-à-vis UGC platforms, the general provisions in Article 1 i (1) of the Deed of Assignment continue, due to your objection, to apply. Therefore, the synchronisation rights shall, also for uses at UGC platforms, lie with GEMA subject to a resolutory condition, a fall-back of rights requires a written notification in each individual case (see above).
- In the case that you have objected to the amendment of the Deed of Assignment, GEMA shall not license the rights in your works and not include you in the distribution of the collected remuneration which it has generated from the granting of such rights. Due to the lack of practicability of a case-by-case rights clearance, this also applies in particular to the administration of the synchronisation rights for non-commercial uses vis-à-vis UGC platforms, which is already planned for 2021.
- In the case of published works, it is possible that there could be conflicting declarations where only the author or the publisher objects to the amendment of the Deed of Assignment. To what extent GEMA can administer the graphic rights and the synchronisation rights for UGC platforms in a work in such a case depends on the individual rights flow. This could be hard to determine and assess in each individual case. GEMA therefore reserves the right, if required, to verify in each individual case the extent to which your objection would affect the rights perception in a published work.
I have an agreement in an old version (Deed of Assignment in a version prior to 2002). Do I have to object the amendments if I do not want that they will be included in my Deed of Assignment?
No. Rightsholders with old agreement versions must agree separately and explicitly to each change or amendment of the Deed of Assignment. GEMA will contact such rightsholders regarding the current new scheme in due course.