Digital Legal Top Stories

Both GEMA and YouTube appeal GEMA v YouTube ruling

By | Published on Thursday 24 May 2012


Following the German court ruling last month in the long running dispute between YouTube and Germany’s publishing rights collecting society GEMA, both sides in the squabble have appealed, despite the latter basically claiming  victory when the ruling was first made.

As much previously reported, GEMA is no fan of YouTube or its parent company Google, despite the web giant’s video service being arguably one of only three digital content services bringing significant and real revenue into the music industry just now (ie significant sums that are not currently dependent, in any way, on venture capital or loss-leader subsidies from tel cos or device makers, the others being Apple and YouTube ally VEVO).

Nevertheless, GEMA believes that YouTube offers publishers and songwriters a poor deal in terms of royalties, and that the video platform doesn’t go far enough to stop unlicensed content from being uploaded by users (some GEMA supporters might claim this is in part deliberate in order to strong-arm rights owners into accepting YouTube’s royalty rates – ie “your content’s going to appear whatever, so you might as well earn something”).

As previously noted, YouTube operates under American copyright law, which says that a technology provider can avoid liability for copyright infringement if its users upload unlicensed content onto its networks providing it has a system via which rights owners can order such files be taken down.

Of course that principle does not necessarily apply in many of the other jurisdictions where the video site operates, though to be fair, YouTube does actually go some way beyond the (some would argue rather low) obligations set out by America’s Digital Millennium Copyright Act, and in many countries rights owners have deemed its operations acceptable, even if local copyright law might not technically concur.

But not GEMA, which took YouTube to court to test whether the video site’s takedown systems complied with German law. And, according to most interpretations of last month’s court ruling on the matter, they do not, meaning that YouTube will either have to step up its filtering systems (which would be expensive and arguably hinder its operations) or agree to more favourable terms and licence the German collecting society’s songs catalogue so that no extra filtering is required (which is almost certainly what GEMA really wants).

Unsurprisingly, YouTube is appealing that ruling, arguing that it already operates sophisticated filtering systems that any content owner is free to utilise, and that the additional measures seemingly required by the German courts would be damaging for not only the Google video site, but also any other website that empowers users to upload and share content. Or, in the words of YouTube Germany spokesperson Mounira Latrache: “The ruling to implement [more] filtering would be damaging for innovation and freedom of expression online”.

Meanwhile GEMA, despite declaring itself the victor in the recent court case, also filed new legal papers earlier this week, in order to meet the deadline for appealing.

The collecting society says it wants more legal certainty around the rights its members have to protect their content online, and a legal right to keep its members informed of negotiations with the Google company even before any deal has been reached. GEMA chiefs have been busy negotiating with YouTube over a possible licensing deal since the original court hearing, but no deal could be reached before the appeals submission deadline, hence why both sides have filed new legal papers despite licensing negotiations being ongoing.

Elsewhere in GEMA news, the collecting society has announced a new deal with Germany-based music rights company BMG which will enable the society to licence out the digital rights to the firm’s entire Anglo-American catalogue on a pan-European basis.

As previously reported, in recent years a number of music publishing companies have allowed individual national collecting societies in Europe to represent all or some of their catalogues on a pan-European level in the digital domain, partly because of demand from the digital music providers, partly to make digital royalty collecting more efficient, and partly to placate those in the European Commission who reckon tht the collecting society system consists of too many monopolies, and who want all the societies in Europe to compete head on with each other.

Confirming the new deal with GEMA, the boss of the v2 BMG company Hartwig Masuch told reporters: “BMG is a start-up of the digital age, and we see technology primarily as an opportunity for the music industry. This cooperation with GEMA is an important step in the right direction, offering digital service providers one-stop licensing of our Anglo-American repertoire across Europe. The advantages include easier access to our repertoire for digital music service providers and simplified, more transparent and faster accounting for our songwriters”.