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News from Brussels – December 2016

ECSA position paper on draft copyright directive

The draft copyright directive published this autumn by the European Commission was welcomed by ECSA as a first step in the right direction. The ECSA board of directors sets out a more comprehensive feedback on behalf of the community of European music creators in a new position paper. The position paper can be accessed here.

Statement of the ECSA Board of Directors: Berlin Higher Regional Court in Kramm vs GEMA

Decision of German Regional Court 24 U 96/14 – Kramm
Bruno Kramm and Stefan Ackermann v. GEMA Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte

On 14 November 2016, the Higher Regional Court of Justice in Berlin decided that GEMA may no longer automatically distribute to GEMA publishers on the basis of the existing distribution rules because the distribution rules do not sufficiently take into account the flow of rights or the provisions of the individual publishing contract. Two GEMA members claimed that GEMA violates its fiduciary relationship with its author members when distributing 40% of the mechanical right and 33,33% of the performing right to publishers, as well as compensations due to exceptions to exclusive rights. The Higher Regional Court took into consideration previous case law, notably the German Federal Court decision in the Vogel case (I ZR 198/13) and concluded, in essence, that as publishers do not bring any rights to the collecting society GEMA cannot distribute the publishers’ share.

The ECSA board of directors takes note of the Kramm decision and wishes to transmit the following views: As a high-level principle ECSA supports the collective management of rights of music writers and publishers. ECSA believes that publishers have an important role in promoting composers and songwriters, in marketing their music and amplifying the exploitation of the works created by composers and songwriters. In the context of this exercise, publishers are and should continue to be entitled to a share of the distributions of CMOs.

However, in many instances music writers are forced to sign a publishing contract in order to get a commission to compose music (i.e. music writers must sign a contract in which the writer agrees that the publisher gets a share of the CMO distributions). This practice, also known in the business as coercive publishing, is a practice especially widespread in the audio-visual sector. ECSA believes that the Kramm ruling should help composers, who were coerced into publishing, to claw back the publishers’ share which were wrongfully and with no justification assigned in the first place. Furthermore, in many instances publishers stop fulfilling their duties to promote their writers, whilst continuing receiving their share (in most instances for the entire duration of copyright which is 70 years after the death of the author). The Kramm ruling should also help to retract these shares, when no active publishing is taking place.

Therefore, the Kramm ruling should be considered as a wake-up call for those publishers, who use coercive practices and do not fulfil their promotional obligations. Publishers must value the trust and assignment of rights from composers and songwriters. Consequently, it must be a publisher’s moral and legal obligation to ambitiously engage in publishing activities for the entire duration of the rights assignment. Otherwise music writers should be entitled to claw back the publishers’ share.

To download the ECSA statement, please click here.

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About ECSA:

The European Composer and Songwriter Alliance (ECSA) represents over 30,000 professional composers and songwriters in 25 European countries. With 50 member organizations across Europe, the Alliance speaks for the interests of music creators of art & classical music (contemporary), film & audiovisual music, as well as popular music.

www.composeralliance.org

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