New court ruling on GEMA and Creative Commons licensing

Yesterday I came across a ruling by the Local Court (Amtsgericht) of Frankfurt/Main on the conflict between GEMA (which stands for: Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte, in English: Society for musical performing and mechanical reproduction rights) and Creative Commons licensing. I think it is a good opportunity to briefly explain a tricky little, but important feature of the German system of the collective management of copyrights: the GEMA-Vermutung (GEMA presumption).

So what is that, the GEMA-Vermutung?

GEMA represents an enormous number of members (composers and writers of lyrics as well as music publishers) and manages their performance rights and their right to make recordings and to distribute those recordings (I am simplifying a little). Moreover, once an author becomes a member of GEMA, the latter claims the right to manage the rights in every musical creation of this author; he can’t cherry pick and manage some of his works himself.

Thus, GEMA has rights to millions of pieces of music and an almost-monopoly in this field. This fact caused German courts some decades ago to develop the concept of the GEMA presumption, that is the (rebuttable) presumption that the afore-mentioned rights in any piece of music (well, at least pop music and other music for a mass market) were held and managed by GEMA. This was supposed to make it easier for GEMA to enforce the rights they managed, thereby making the collection of license fees more efficient.

The consequence of the GEMA presumption is that whenever you play music at a concert or a festival or use music in a film, etc., GEMA will come and ask for license fees, without verifying beforehand, if they actually represent any of the authors of the music at issue. Thus, suppose the music played was not made by a GEMA member, it is now your turn to prove that fact. And it is not sufficient to just submit a playlist, no: you also have to make an exhaustive list of the names of every composer and lyricist of every piece. If you are lucky, GEMA won’t find any of the names in their database.

Let’s turn back to the case I mentioned in the first paragraph. Two aspects of this case are noteworthy. Firstly, it was about a CD that allegedly only included music licensed under a Creative Commons license. However, this fact alone could not rebut the GEMA-Vermutung, as has become evident over the years.

But secondly, the music had been published under a pseudonym. Did this change the matter? After all, GEMA did not have the pseudonyms in their database so that one could argue that they had not proof for representing the authors. At the same time, the CD producers argued that author had the right to make their music available under a pseudonym.

All this may sound like pretty good arguments; the court nevertheless didn’t buy them. The judge found that the GEMA presumption prevailed. I haven’t had the opportunity to read the written opinion, but I assume that the court’s main argument will have been that as long as the actual names of the authors are not disclosed, neither GEMA nor anyone else, including the court, have a chance to verify the information given by the CD producers. And as a consequence, the presumption could not be deemed rebutted.

The defendants have already announced that they will appeal the decision.


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