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Publishers' participation in pay-outs
(07/2012 - 12/2016)
Pursuant to Art 27 para a to Act on Collective Management Organisations (CMO Act), publishers can participate in distributions of statutory remuneration claims if the author has consented to the participation either after the release of the work or at the point when he declares the work. The legal provision was implemented in Art 26 clause 3 of GEMA's distribution plan. As with GEMA it is typically the publisher who declares the work, the author can, de facto, only provide an effective consent to the participation after the work has been declared. GEMA therefore had to establish a process allowing publishers to notify the author's consent after the declaration of the work.
Please note that the submission of details via the ECP will only apply to future distributions. A retroactive participation of the publisher in statutory remuneration claims is not possible. Furthermore, pursuant to Art 26 clause 3 of GEMA's distribution plan, this means that deadlines in Art 41 clause 3 of GEMA's distribution plan must be met so that details relating to the participation in statutory remuneration claims can be taken into account for a distribution date.
Pursuant to Art 27 para 2 there is no need for a separate approval from the author for the publisher's participation in exploitation rights. Further details are therefore not required and cannot be provided via the ECP anymore.
The outlined process is generally also applicable if you are a sub-publisher and have acquired foreign repertoire. It is however quicker and more practical if you have already indicated whether the foreign contracting party has granted you the rights to participate in the statutory remuneration claims when you register your sub-publishing agreement .
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.