GEMA loses again against You­tube in court

GEMA fees
Gema vs. You­Tube

The Munich Hig­her Regio­nal Court dis­missed an action for dama­ges brought by GEMA against You­tube. Accor­ding to the court, You­tube is not lia­ble for the copy­right inf­rin­ge­ments of its users(Ref.: 29 U 2798/15).

For years, the­re has been dis­agree­ment bet­ween the coll­ec­ting socie­ty GEMA and the Inter­net plat­form You­tube about lia­bi­li­ty and the ques­ti­on of whe­ther, or in what amount, it must pay remu­ne­ra­ti­on for the use of musi­cal works. GEMA is of the opi­ni­on that You­tube must pro­vi­de it with infor­ma­ti­on about the music available the­re that is repre­sen­ted by GEMA and that it owes cor­re­spon­ding royal­ties to the aut­hors and music publishers. You­tube, on the other hand, belie­ves that it is not respon­si­ble for the vide­os uploa­ded by its users and the­r­e­fo­re does not com­mit copy­right inf­rin­ge­ment.

The GEMA/Youtube decis­i­on of the OLG Munich

The Munich Hig­her Regio­nal Court now had to deci­de whe­ther You­tube is to be clas­si­fied as a music ser­vice and is the­r­e­fo­re gene­ral­ly respon­si­ble for the con­tent pos­ted, or whe­ther it mere­ly pro­vi­des a plat­form on which others can dis­tri­bu­te con­tent inde­pendent­ly. GEMA con­siders You­Tube to be a music ser­vice that mana­ges the vide­os and con­se­quent­ly has to obtain licen­ses to make the music available. The Munich Hig­her Regio­nal Court, howe­ver, sees things dif­fer­ent­ly and clas­si­fies You­tube mere­ly as a tech­ni­cal ser­vice pro­vi­der pur­su­ant to Sec­tion 10 TMG.

The decisi­ve fac­tor for the court is that the uploa­ding of the vide­os is an auto­ma­tic pro­cess that takes effect wit­hout any inde­pen­dent action on the part of You­Tube. In this respect, You­tube is neither a per­pe­tra­tor nor a par­ti­ci­pant in any copy­right inf­rin­ge­ment by the uploa­ders. With this decis­i­on of Janu­ary 28, 2016, the Hig­her Regio­nal Court fol­lows the opi­ni­on of the Munich Regio­nal Court from the sum­mer of 2015(Ref.: 33 0 9639/14). The Regio­nal Court had also ruled that You­tube did not adopt the uploa­ded vide­os as its own and that the­re was also no act of aiding and abet­ting. A cla­im for dama­ges pur­su­ant to Sec­tion 97 (2) UrhG was the­r­e­fo­re not given.

Out­look in the mat­ter of GEMA

Howe­ver, an ear­ly end to the legal dis­pu­te is not to be expec­ted fol­lo­wing the ruling. GEMA has alre­a­dy announ­ced that it will take a clo­se look at the reasons for the ruling and will pro­ba­b­ly appeal. Then, if neces­sa­ry, the BGH would deal with the mat­ter next. You­tube, on the other hand, has announ­ced that it is inte­res­ted in an out-of-court sett­le­ment with GEMA.

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 copy­right and media law firm in Colo­gne.

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