GEMA fees abo­lished for doc­tors

GEMA LogoGEMA fees are no lon­ger paya­ble in den­tists’ wai­ting rooms for using radio broad­casts as back­ground music for their wai­ting pati­ents, accor­ding to a decis­i­on by the Fede­ral Court of Jus­ti­ce (Case No. I ZR 14/14). The BGH thus fol­lo­wed a decis­i­on of the Court of Jus­ti­ce of the Euro­pean Uni­on of March 15, 2012(SCF/Del Cor­so).

This was pre­ce­ded by court pro­cee­dings of the first ins­tance befo­re the Düs­sel­dorf Local Court (ref. no. 57 C 12732/12 of 04.04.2013) and appeal pro­cee­dings befo­re the Düs­sel­dorf Regio­nal Court (ref. no. 23 S 144/13 of 08.01.2014).

The defen­dant was a den­tist from Düs­sel­dorf who ter­mi­na­ted an exis­ting GEMA usa­ge agree­ment wit­hout noti­ce after the Court of Jus­ti­ce of the Euro­pean Uni­on ruled that the repro­duc­tion of back­ground music in den­tal prac­ti­ces did not con­sti­tu­te public per­for­mance. GEMA insis­ted on the pay­ment of their GEMA fees.

Pre­vious legal situa­ti­on

Until the judgment of the Court of Jus­ti­ce of the Euro­pean Uni­on, it was sett­led case law in Ger­ma­ny that radio broad­casts in wai­ting rooms of doc­tors’ prac­ti­ces con­sti­tu­ted com­mu­ni­ca­ti­on to the public within the mea­ning of Sec­tion 15 (3) of the Copy­right Act. This broad­cast inter­fe­red with the exclu­si­ve right of aut­hors of musi­cal works to make radio broad­casts of works per­cep­ti­ble through loud­spea­k­ers and gave rise to a cla­im by per­for­mers for appro­pria­te remu­ne­ra­ti­on. This appro­pria­te remu­ne­ra­ti­on was clai­med through the GEMA fees paya­ble.

New legal situa­ti­on

The con­cept of com­mu­ni­ca­ti­on to the public has its legal basis in Artic­le 3(1) of Direc­ti­ve 2001/29/EC on the har­mo­niza­ti­on of cer­tain aspects of copy­right and rela­ted rights in the infor­ma­ti­on socie­ty. Artic­le 3(1) sta­tes:

“Right of com­mu­ni­ca­ti­on to the public of works and right of making available to the public of other pro­tec­ted sub­ject mat­ter

(Mem­ber Sta­tes shall pro­vi­de that aut­hors shall have the exclu­si­ve right to aut­ho­ri­ze or pro­hi­bit the com­mu­ni­ca­ti­on to the public, by wire or wire­less means, of their works, inclu­ding making them available to mem­bers of the public from places and at times of their choice.”

Requi­re­ments “public repro­duc­tion

Whe­ther a com­mu­ni­ca­ti­on to the public exists requi­res an indi­vi­du­al assess­ment in which the fol­lo­wing three depen­dent and inter­re­la­ted cri­te­ria must be con­side­red indi­vi­du­al­ly and in their inter­ac­tion with each other:

  1. Play­back
  2. Public
  3. Acqui­si­ti­on pur­po­ses

A “repro­duc­tion” requi­res that the user acts with full know­ledge of the con­se­quen­ces of his con­duct in order to pro­vi­de third par­ties with access to the pro­tec­ted work, which they would not have wit­hout his action.

A “public” is only given with an inde­fi­ni­te num­ber of poten­ti­al addres­sees and quite a lot of per­sons. It depends on how many peo­p­le have access to the same work at the same time and in suc­ces­si­on.

An act of explo­ita­ti­on ser­ves “acqui­si­ti­ve pur­po­ses” if it is direc­ted spe­ci­fi­cal­ly at the audi­ence for which the repro­duc­tion is made and that audi­ence is recep­ti­ve to the repro­duc­tion and is not inten­ded to be rea­ched mere­ly inci­den­tal­ly.

Alt­hough the Fede­ral Court of Jus­ti­ce deals in detail with the ques­ti­on of “pro­fit moti­ve” in its ruling, it lea­ves this ques­ti­on open in the case of the den­tist from Düs­sel­dorf and bases its decis­i­on on the ques­ti­on of the term “public”. As descri­bed, accor­ding to the Court of Jus­ti­ce of the Euro­pean Uni­on, com­mu­ni­ca­ti­on to the public neces­s­a­ri­ly pre­sup­po­ses an inde­ter­mi­na­te num­ber of poten­ti­al addres­sees and quite a lar­ge num­ber of per­sons as addres­sees.

“Inde­ter­mi­na­te num­ber of poten­ti­al addres­sees.”

An “inde­ter­mi­na­te num­ber of poten­ti­al addres­sees” is when the repro­duc­tion is made to per­sons gene­ral­ly, i.e., not limi­t­ed to par­ti­cu­lar per­sons belon­ging to a pri­va­te group.

“Quite a lot of peo­p­le”

By the cri­ter­ion of “quite a lar­ge num­ber of per­sons” it is meant that the con­cept of the public con­ta­ins a cer­tain mini­mum thres­hold and excludes an all too small or even insi­gni­fi­cant majo­ri­ty of per­sons con­cer­ned. It depends on how many peo­p­le have access to the same work simul­ta­neous­ly and con­se­cu­tively.

The­se con­di­ti­ons are not met in a den­tal prac­ti­ce. A dentist’s pati­ents typi­cal­ly con­sti­tu­ted a spe­ci­fic uni­ver­se of poten­ti­al bene­fi­ci­a­ries, sin­ce other indi­vi­du­als gene­ral­ly do not have access to tre­at­ment by a den­tist. Moreo­ver, the num­ber of wai­ting pati­ents is insi­gni­fi­cant or even insi­gni­fi­cant, becau­se it is very limi­t­ed. In addi­ti­on, pati­ents come one at a time and usual­ly do not lis­ten to the same recor­dings.

GEMA fees in hotels and pubs

Howe­ver, the con­di­ti­ons of an inde­ter­mi­na­te num­ber of addres­sees and “quite a lar­ge num­ber of per­sons” are met if radio broad­casts are trans­mit­ted in a hotel for guests in their rooms or in a guest­house for guests stay­ing the­re (ECJ SGAE/Rafael; PPL/Ireland; Foot­ball Asso­cia­ti­on Pre­mier League and Mur­phy). The cur­rent GEMA rate for hotel rooms WR S‑1 is EUR 4.90/room per year.


The­r­e­fo­re, if you have con­cluded a GEMA licen­se agree­ment for play­ing radio broad­casts in a den­tal prac­ti­ce, this can be ter­mi­na­ted. This decis­i­on is likely to be appli­ca­ble to simi­lar cases such as other medi­cal prac­ti­ces as well as wai­ting are­as of other pro­fes­sio­nals, ser­vice pro­vi­ders or busi­nesses. Howe­ver, the ques­ti­on of publi­ci­ty must be exami­ned spe­ci­fi­cal­ly in each indi­vi­du­al case.

If you have any ques­ti­ons or need help with a dis­pu­te regar­ding GEMA fees, plea­se feel free to cont­act us by pho­ne at 0221–4201074, by e‑mail at info@rehkatsch.de or make an appoint­ment with our office.

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