The performing rights problem (or: YouTube v GEMA)

A street musician - ©iStockphoto.com/dmitrievadmitrievaA court case in Germany made the international headlines last week.  Billed in some cases as “YouTube v GEMA” it dealt with the issue of whether Google has to pay royalties for the music that people upload to the YouTube service.

Since GEMA is not that well known outside of Germany, it’s probably fair to compare them with the PRS in the UK or ASCAP in the USA.  Their job is to collect royalties from anyone using the music written or composed by their members.

This is a very important point: they represent the songwriters and composers, not necessarily the artists.

Just for a moment, think about what it means if you just use a piece of music on your YouTube video, without getting permission to first.  You are probably infringing on the copyright of the record label or the performer on one level, but on another you are using words and music written by someone as well.

So even if you are musical you cannot just re-record a song in your own home and use it, because you would still need to pay royalties to do so.  In fact, if you are a musician and play to a live audience then this is exactly what you have to do.  Even schools and kindergartens often pay royalties to be able to sing songs.  Churches and Scout Groups pay to be able to play music at their annual fêtes.

You can’t even sing “Happy Birthday to You” in public (or on YouTube) without having to pay because it isn’t out of copyright… yet.

But if I put on a performance in my local town, then it’s pretty obvious who and how much I have to pay to do so.  For me, it’s the GEMA.

What about YouTube though?  Could you say that as Google is a US-based you have to pay ASCAP?  Or if I embed the video on my site on a German server, do I then pay GEMA as well?  What happens if someone watches my video in another country?

GEMA would like Google to either filter out the videos or pay royalties for them, and one way discussed was based on the number of viewers in Germany.  Since Google does so much else based on content and location that doesn’t seem to be too much to ask, if only they could agree on the price.

The price issue is not easy.  After all, people are providing their videos for free, but usually not paying to use the music.  Google place Ads on the video and earn from those.  Perhaps a simple answer would be to pay a share of the ad income.

But without agreement on that point the argument has gone elsewhere and part of the case being discussed this week dealt with whether Google was responsible for content that the users were uploading.  The court in Hamburg decided that it was.

Now the courts in Hamburg are not exactly known for being internet-savvy.  In one well-publicised case they decided that website owners could be held responsible for the content of the pages that they link to, leading to a flurry of disclaimers being updated on German websites.

They also decided that forum owners are responsible for things that other people post there, and that the owner should therefore read every post before it is published – something other German courts do not exactly agree on.

In that respect the decision probably wasn’t that surprising, but what is Google to do?

I think they will simply have to block any music that is recognisable as being from GEMA’s repertoire and offer some way for anything that gets through to be reported as well – at least in Germany.

And guess what?  At the moment that’s often what happens.  I often see links to YouTube videos, especially on Facebook, that I cannot play because they have been blocked by Google due to the music in them.  Strangely the video itself does not get removed, it just gets blocked for German IP addresses.

In one case, I even tried to watch a promotional video on a French website and could not.  I assume that the company concerned had actually paid to use the music legally in France, so theoretically the French equivalent of the GEMA – SACEM – was probably receiving the royalties due.  And yet the video was blocked in Germany.

Sometimes even the official YouTube channels of international artists get blocked.  Non-German ones, that is.

You see, being internationally active is complicated!

But then, the GEMA are not an easy bunch to get on with.  Theoretically, a German performer has to pay royalties to use their own recordings on their own website because the royalties are going to writer that way.

And I too have fallen foul of a problem with music in the past, although I spotted it before anything went on-line so it didn’t cost me anything except the time it took to do the recording that I could not use.

I recorded a podcast outside at a festival, making sure only to record when the band were not playing on stage.  When I went to edit it, I heard a barrel organ in the background that had been playing between songs.  Since I could recognise the tunes it was playing, I looked them up in the GEMA database and sure enough some of them were in there.

So I called the GEMA and asked if that was OK, or how much it was going to cost to be allowed to put the podcast on-line.  The answer was 60 Euro per year and I would have to let them see audits of my accounts each year because the rate would change if the income on the site went above a certain level.  I declined.

For podcasts that I really do want to use music in, I use royalty free music.  Or as well call it “GEMA-frei“.  I pay a flat fee to the composer via an agency to either use the piece on a YouTube channel or in a series of MP3 files.

It’s not going to be easy to find a solution to the YouTube/GEMA problem.  The bureaucratic – but probably the best – way is going to be to scan all uploads and block any music that they recognise as being copyrighted.  Then give the uploader the chance to pay the royalties, which Google could then pass on to the relevant societies.  Keep it cheap, and it might actually mean more music on YouTube, more income for the rights societies and their members, and less of a headache for the video producer who wants to use a piece of music legally.

Any other suggestions?

About Graham Tappenden

Graham Tappenden is a self-employed IT consultant and ex-pat blogger living in Germany.

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