“GEMA” OVER? Another development in the dispute between Google and the German performance rights organization

“Unfortunately, this video is not available in Germany because it could contain music, for which we could not agree on conditions of use with GEMA. Sorry about that .” (Dieses Video ist in Deutschland leider nicht verfügbar, da es möglicherweise Musik enthält, für die die erforderlichen Musikrechte von der GEMA nicht eingeräumt wurden. Das tut uns leid). Every YouTube  user in Germany knows these two sentences by heart. As a result of Google’s dispute against GEMA, beginning in 2009, our western neighbour has suffered from the lack of access to parts of YouTube’s content. How big is the problem? It is estimated out of 1000 of the most popular (in a given time) videos on YouTube, as many as 61.5% are not available in Germany. By comparison, the percentage for the USA, Switzerland and Afghanistan is, respectively, 0.9%, 1.2% and 4.4% (source: spiegel.de). No wonder there are more and more songs and jokes mocking the dispute. Certainly this isn’t increasing the number of GEMA’s allies. Actually, what is GEMA? GEMA (Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte) is the German state performance rights organisation, established in 1933, representing 60 thousand songwriters, composers and music publishers. It is the equivalent to ZAiKS, the Polish Society of Authors and Composers.

The licensing agreement between Google and GEMA expired in 2009 and although both parties were interested in its extension, they didn’t reach an agreement with regard to the fees YouTube would pay to GEMA (GEMA proposed Google would pay EUR 0.00375 (approx. USD 0.005) for every streamed video). Further, GEMA wanted to obligate Google regarding the pre-moderation of content posted on YouTube, including an obligation to remove all content infringing copyright laws. In the absence of consensus between the parties, some videos on YouTube are blocked for the people who log on with a German IP. Worse, the issue of the level of royalties started an ongoing court battle between the parties.

GEMA brought proceedings against YouTube with regard to, among other things, 12 music videos which were posted on the service without the permission of their authors nor any royalties for them. The dispute entered a rather symbolic dimension. The court was supposed to establish whether YouTube could be held responsible for the content it posts. YouTube’s reasoning was based on the fact it only provides a platform for its users to share content, hence it cannot be held liable for the actions of Internet users. YouTube also indicated that its long-standing practice was to remove all files for which their authors had issued claims. The regional court of Hamburg (LG Hamburg, 20.04.2012, Az 310 O 461/10) issued a judgement that the owner of a hosting platform (YouTube) was not directly responsible for infringing the copyrights by its users or by publishing the works protected by law. The only responsibility of the platform’s provider is to immediately remove the content infringing copyright and to guarantee the disputed work is not published in the future. Thus, according to the Hamburg court, YouTube cannot be regarded as an infringer since as the operator of the hosting platform it is only a provider of the medium. Further, there is no transfer occurs regarding the copyrights of the videos posted on the platform. However, the court also stated that the mere fact of making the platform available to publish audio and video files allows for illegal activities on the Internet, which is sufficient to conclude that it pertains to facilitating the violation of the legal order. To avoid this, the court imposed the obligation upon YouTube to apply software identifying works and music videos.

Another unresolved issue for the parties is the message which greets YouTube users once they try to play a given video (see first paragraph: (Dieses Video ist in Deutschland (…)”). GEMA found the message defamatory and misleading as it only unilaterally referred to GEMA in the dispute. GEMA doesn’t want to be perceived as an organisation which prevents access to music, while, in fact, it intended to defend it. The court of first instance consented to GEMA’s position, concluding the message displayed to YouTube users left a mistaken impression that GEMA was responsible for blocking the content within the service, while it was Google which undertook such measures on its own (LG München I, 25.02.2014 – 1 HKO 1401/13). The decision of the district court in Munich was upheld by the court of second instance, which considered such activity as breaching the competition law (OLG München, 07.05.2015 – 6 U 1211/14).

On 1 July 2015 the district court in Munich dismissed the lawsuit filed by GEMA with regard to the payment of EUR 1.6 million as the result of enabling video streaming on YouTube with regard to works which Google had not obtained the relevant license from GEMA. GEMA calculated the amount in controversy on the basis of a sample of 1000 audio and video works (average fee 0.375 eurocents for every view). The court concluded YouTube was not obliged to pay this since, based on the facts of the case, it could not be considered an offender. As the platform operator, YouTube only provides users with a tool. The court in Munich  stated it was the users posting videos on YouTube who were obliged to enter into the relevant license agreement.*

The music industry is very concerned about the prolonged dispute between GEMA and Google. Edgar Berger, the CEO of Sony Music, said: “Videos blocked on YouTube cost us millions”, “You cannot blame the Internet. The Internet is a blessing for us. Blocking videos on YouTube is not an idea of the music industry. Any questions regarding the reasons for such restrictive policy and possible legal changes must be directed to GEMA.” One questions whether, as a result of the dispute with Google since 2009, and the actions of GEMA — an organisation whose purpose is to protect authors’ rights — are not, in fact, harmful for them. Though much can be said about the dispute, no one will risk the statement: Game (GEMA) over. Fortunately, like the rest of the world, we can follow the developments of this dispute while listening to music… streamed seamlessly on YouTube…

*Information taken from GEMA’s website: https://www.gema.de/aktuelles/youtube/; judgement and reasoning are not yet available.