Youtube partially triumph over GEMA – but needs to do more

August 2015

Internet, music publishing



Google has won a legal victory on over German performing rights society GEMA, which had sought to make the company’s video-sharing service YouTube pay each time users streamed music videos by artists it represents. A Munich court rejected GEMA’s demand that YouTube pay 0.375 euro cents ($0.004) per stream of certain videos. In its claim, GEMA had picked out a sample of 1,000 videos which it said would cost YouTube around 1.6 million euros. However the German regional court  ruled that Google’s video-sharing website YouTube must prevent users from posting material that infringes copyright law once such a video has been brought to its attention. “However, if such a service provider has been made aware of a clear violation of the law, it must not only remove the content, but also must take precautions to avoid further infringements of copyrights,” the court said in its ruling. Both sides had appealed an earlier 2012 ruling.
“What obligations the service provider has in this context — in particular whether and to what extent it is obliged to block and then check and monitor the content uploaded to its platform — is determined by what it can reasonably be expected to do in the circumstances of the case in question,” stated the Hanseatic Higher Regional Court
YouTube and Google are ordered to provide the plaintiff in writing with data, including the names and addresses of uploaders who have uploaded infringing works to YouTube. If no postal address is available, the defendants shall provide the corresponding e-mail addresses.
GEMA may appeal the ruling but issued a positive Press Release saying this:
“Hamburg Higher Regional Court confirms: YouTube is liable for copyright

“This week, on July 1, 2015, Hamburg Higher Regional Court today ruled that YouTube is liable as an ‘interferer’ (Störer) for content made available on its platform by third parties. The fundamental responsibility of YouTube via the principle of ‘interferer liability’ (Störerhaftung) was therefore confirmed by the appeal court. If YouTube receives notice of copyright infringements, the Google subsidiary must take appropriate measures to ensure that these copyright protected works on its platform are no longer accessible in Germany.
In another case, Munich I Regional Court rejected an action for damages by GEMA. According to these rulings, within the present legal framework YouTube is currently not financially accountable for the use of copyright protected works on its platform. Hamburg Higher Regional Court endorsed the opinion of the lower court, Hamburg Regional

Court, and confirmed YouTube’s interferer liability. “The Higher Regional Court’s ruling shows that YouTube cannot evade responsibility for copyright infringements and cannot shift responsibility for monitoring infringements of rights on to the copyright holders”, said GEMA’s CEO Dr. Harald Heker.
The ruling is an important signal for the approximate 70,000 members of GEMA, on whose

behalf the collective management organisation is fighting for adequate remuneration. The Higher Regional Court’s decision is not yet final. The concept of interferer liability is to be understood as liability for infringements of rights arising from acts of contribution with causative effect and violations of control and monitoring obligations. The responsibility of the Google subsidiary via the principle of interferer liability was already established back in April 2012 by Hamburg Regional Court. The Higher Regional Court has confirmed the decision of the lower court and stated in its oral presentation of the judgment that as an interferer, YouTube must comply with far-reaching control obligations in relation to notified infringements of rights. In particular the Content ID process and the use of word filters are considered by the Higher Regional Court to be appropriate verification duties. However, it is not sufficient for YouTube to simply refer the rights holders to its Content ID program. Instead YouTube apply this system itself.
It follows from the two judgments that although YouTube is responsible for preventing

infringements of rights, this does not, however, result in a duty to pay reasonable compensation to the copyright holders. “The Higher Regional court judges correctly indicated in the oral presentation of the judgment that in the area of music videos in particular, YouTube has moved structurally further and further away from being a mere host provider”, said GEMA’s General Counsel Dr. Tobias Holzmüller. “Unfortunately, due to the present legal framework, the Higher Regional Court, and Munich Regional Court too, could not see their way to recognizing liability on the part of YouTube as the perpetrator of the infringing acts itself (Täterhaftung), with a resulting liability to pay damages.”
The background to the dispute is the claim by GEMA that authors of musical works should be paid an adequate compensation for the use of their copyright protected material on the YouTube platform. In the last years, YouTube has paid GEMA no royalties at all for using music on its online video platform, although it generates enormous advertising income from the music. For GEMA responsibility clearly lies with YouTube: “Confirmation of interferer liability by the appeal court once again underlines the fact that online services have a responsibility when they rely on business models without proper licensing of the necessary rights”, declared Thomas Theune, GEMA’s Director of Broadcasting and Online. “However, as YouTube earns substantial revenue through the commercial exploitation of music works, it is our goal to finally get YouTube to pay adequate compensation for the use of our members’ works, in the same way as other music services on the market do. This is the only way of ensuring that in the digital age, creative people are able to make a living from their creative activities.”
For further information, including background information on the controversy between GEMA and YouTube, visit
GEMA represents the copyrights of more than 70,000 members (composers, lyricists, and music publishers) in Germany, as well as over two million copyright holders all over the world. It is one of the largest societies for authors of works of music worldwide.”
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