Tales Of Collection Societies Gone Wrong: GEMA

from the it-ain't-about-helping-the-artists... dept

We've noted in the past some of the massive problems with various collections societies around the world. These groups are often given something of a monopoly over collecting music royalties, and even though they present themselves as being non-profits designed to help artists, the truth is usually something far different. Beyond abusing their position, their real goal is often not to help all artists, but a small subset at the top. This is what copyright law has pretty much always done. By setting up artificial barriers and monopoly rents, it allows a very few at the top to benefit at a grossly disproportionate level, and it's the rest of the creators who are harmed by this (i.e., if those monopoly rents mean that I need to pay much more than the true market rate to support some top pop star, I'm much less likely to spend money on an up and coming indie musician). The whole recording industry has been built around a few megastars, and it should be no surprise that the industry has used copyright law and collections societies in support of that.

Wolfgang Senges is digging into how this works in Germany, where some are finally questioning GEMA's actions. In delving into how GEMA works, Senges notes that its entire structure is specifically designed to really only give a small percentage of top artists a say in how GEMA operates. Everyone else just gets dragged along for the ride. Is it any wonder, then, that its policies are mostly designed to help those big artists, rather than others?

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German Court Says Rapidshare Must Get Magical Powers To Know Which Songs Infringe And Which Do Not

from the how's-that-going-to-work? dept

Last year, the German music collection society GEMA sued Rapidshare claiming that the company had to filter out any infringing content. Of course, this makes little to no practical sense. Rapidshare is a platform that users use to share content. Rapidshare itself has no way of knowing whether the content is infringing or not, and any liability should be on the users, not the platform. But... courts don't always understand such things, and so a German court has now ruled that Rapidshare must stop certain songs from being distributed. GEMA, of course, is thrilled, noting that this means the copyright holders are "no longer required to perform the ongoing and complex checks." But, it means that Rapidshare not only has to perform ongoing and complex checks, it has to do so without having any information on what's legit or not. What if musicians want to share their music that way? What if the use is fair use? RapidShare appears ready to appeal, noting that appeals courts on these issues have been much more reasonable, so they're hopeful that the decision is reversed or greatly limited.

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German Collections Society Trying To Collect For Performances It Has No Rights Over

from the how-it-all-works dept

The various music collections societies always like to present themselves as being there "for the artists." When we write about ASCAP in the US or PRS in the UK, we often get angry emails from supporters of those groups (or individuals who work for them) insisting that what they do is all to support the artist, and we should go pick on the record labels or something instead. Yet, that's misleading. These organizations always seem to keep looking to expand their collections duties, often at the expense of any other business model. Take, for example, what's happening in Germany, with its collection society, GEMA (which is separately battling YouTube over music videos). You see, like so many of these collections societies, GEMA works on the principle of "guilty until proven innocent." We've seen this with ASCAP and BMI as well -- where they insist that anyone who plays live music has to prove that none of it is covered by the collections society.

In the case of GEMA, unfortunately, German courts have agreed. The burden isn't on GEMA to prove that GEMA-covered music was performed -- but on the accused to prove that no GEMA-covered music is performed. Now, Wolfgang Senges alerts us to a rather ridiculous scenario. There's a startup, Jamendo, which has received a fair amount of press coverage, for offering a place for musicians to offer up their music under a Creative Commons (or similar) license. Artists uploading their works who want to offer a commercial license option (on top of the free option) have to show that they are not covered by a collections society like GEMA. As part of the commercial offering, Jamendo offers up a license showing that the music is not covered by GEMA. This is so that any establishment using Jamendo-licensed music can "prove" that the music wasn't covered by GEMA.

But, here's the fun part. According to Senges, GEMA refuses to recognize the license. That is, if you're a business that specifically licensed all the music you use from Jamendo, when GEMA comes calling to demand a blanket royalty fee, you should be able to show GEMA the license from Jamendo, showing that the music you play is not covered by GEMA and thus GEMA has no right to collect. But, GEMA refuses to recognize the license, and insists that every performance requires the venue/artists to fill out GEMA's forms about every song, to show that it's not covered by GEMA, or the group insists it has the right to collect, thanks to a legal ruling that states:

Because of the large and comprehensive repertoire GEMA manages, at performances of national and international dance and entertainment music there is an actual assumption militating in favour of the existence of a liability fee.

Oh, and lest we forget, it appears that even if you do fill out GEMA's own forms listing out all the non-GEMA music you played, you have to pay GEMA to file the forms. So... you end up paying no matter what.

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Record Labels In Germany Learning That YouTube Has The Leverage

from the no-more-videos dept

Just as in the UK, where Google decided to block all music videos from the major record labels, after those labels demanded payments that Google felt was way out of line with what could be made from advertising, it looks like Google has now pulled music videos in Germany as well. Once again, the record labels will likely complain and demand investigations -- even as other artists have learned that they don't need to profit directly from their videos on YouTube, but that they can profit indirectly and that pulling their videos down actually does a lot more harm than good.

Of course, the record labels recognize this implicitly -- otherwise they would be happy that their music videos were pulled down. If they didn't recognize the benefit from YouTube, why would they complain at all? The problem, it seems, is more psychological. The record labels know they benefit from the music being on YouTube -- but they also know that Google benefits. Rather than realizing there can be relationships where both sides benefit and everyone is better off, the labels seem to feel that only they should really benefit, and thus, Google should have to pay out all (or most) of its benefit.

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