In appeal proceedings heard on november 14, 2016, the Berlin Court of Appeal strengthened the rights of musicians/artists: According to the ruling, GEMA is not entitled to reduce the remuneration shares due to these plaintiff artists as authors by so-called publisher shares from 2010 onwards.
The background to this legal dispute concerns the distribution of revenues derived from the exploitation of copyrights. In its decision, the 24th Senate of the Berlin Court of Appeal applied and extended the jurisprudence of the Federal Court of Justice (judgment of the Federal Court of Justice of April 21, 2016 – Publisher's Share; BGH I ZR 198/13) to the distribution of revenues from copyright exploitation. Accordingly, GEMA may only distribute funds to those right holders who have effectively transferred their rights. If the authors had initially transferred their rights to GEMA based on contractual agreements, publishers could not derive any claims from the artists' copyrights, as publishers do not possess their own neighboring rights. Consequently, they could not claim a share in the revenues from exploitation rights.
A different situation might apply if the authors had issued specific payment instructions in favor of the publishers or had assigned their claims for remuneration against GEMA to the publishers (at least partially). However, such special agreements in favor of publishers were neither typically identifiable nor ascertainable in the present case involving the plaintiff artists.
Furthermore, in today's decision, the Berlin Court of Appeal ordered GEMA to provide the plaintiffs with information regarding the corresponding publisher shares and to render an account thereof. The question of whether the artists are also entitled to claim further remuneration payments based on the information to be provided has not yet been decided today. The disclosure of information must first be awaited, which is why only a partial judgment was rendered.
The written grounds for the judgment are not yet available. Leave to appeal to the Federal Court of Justice was not granted; an appeal to the Federal Court of Justice against the denial of leave to appeal would likely not be admissible due to not reaching the required appeal threshold amount.
Berlin Appellate Court, 24th Civil Senate, judgment of november 14, 2016, file number 24 U 96/14.
Previous instance: Berlin Regional Court, judgment of May 13, 2014, file number 16 O 75/13
Source: Press release of the Berlin Court of Appeal dated november 14, 2016
Goldberg Attorneys at Law 2016
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
