The Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA; "Society for musical performing and mechanical reproduction rights") is a government-mandated collecting society and performance rights organization based in Germany, with administrative offices in Berlin and Munich. GEMA represents the usage rights stemming from authors' rights (e.g., mechanical licensing, broadcast licensing, synchronization licensing) for the musical works of those composers, lyricists, and publishers who are members in the organization. It is the only such institution in Germany and a member of BIEM and CISAC. Other collecting societies include the (AKM) Society of authors, composers and music publishers (de) in Austria and SUISA in Switzerland.
As an "accredited profit-making association with legal capacity" (), GEMA's capacity to be a subject of legal rights and duties is based upon state conferral (under Article 22 of the German civil code). The chairperson of the executive board (CEO) is Tobias Holzmüller (since 2023); the chairperson of the board of directors is Ralf Weigand.
Structure and membership
GEMA is organized according to (German law of association). It directly represents some 5,000 composers, lyricists, and music publishers as full members, along with approximately 95,000 more as members with sharply restricted rights who have entered into a deed of assignment with GEMA without fulfilling the professional requirements for full membership. Members of this latter group are termed "extraordinary members" within the organization, but they do not enjoy the rights associated with membership under German law of association. As of 2010, GEMA also represents a further 2 million international rights-holders within Germany, through reciprocal arrangements with other performance rights organizations.
Membership in GEMA is necessarily voluntary, since all usage rights (stemming from German authors' rights law) are reserved exclusively by the author. In contrast with copyright as it usually appears in common law, authors' rights are inalienable (i.e., non-transferable), which means that the author can transfer only the exercise of these rights to another natural or legal person. Therefore, the author theoretically reserves the right to exercise her/his own rights or to transfer these duties to another third party (e.g., a collecting society or performance rights organization). The de facto situation remains in GEMA's favor, however, as all efforts to found a competing institution have thus far been hindered by the German Patent and Trademark Office, and the sole management of one's own authors' rights remains a daunting task for lone artists.
In order to be represented by GEMA, authors (i.e., composers and lyricists along with their publishers and heirs) must become a member and sign a deed of assignment () with GEMA, transferring the exercise and exploitation of media rights for the author's entire repertoire to GEMA. Member authors are entitled to apply for full membership after spending five years as extraordinary members, fulfilling the requirement of maintaining a payout-level from GEMA above a certain minimum value. Until then, they belong to the status category of "extraordinary member," with limited voting rights (and usually a meagre share of fee revenues, ca. 4.8% in 2010). Other people, who are indeed authors but neither composers nor lyricists (nor publishers nor inheritors of authors), can also enter into a deed of assignment with GEMA; however, these authors cannot gain full membership, instead remaining so-called "associated members." The overwhelming majority of those represented by GEMA have no access to membership status as defined and protected under the German civil code (see Articles 21–79), holding instead the pseudo-title of "associated member." In 2010, approximately 24.11% of fee revenues were distributed to associated members.
GEMA is organized by professional and status groupings. German members of GEMA can be divided into two groups: 95,000 extraordinary members () and 5,000 full members (). Formerly the devision was into three groups: associated members (), extraordinary and full members. Those who have signed a deed of assignment with GEMA but do not fulfill the requirements for full membership can become extraordinary members. Extraordinary members do not count as members in the legal sense, as defined in the German civil code concerning associations. Full and extraordinary members must be either composers, lyricists, or music publishers. Extraordinary members can become full members, when they have received at least €30,000 in fee payouts from GEMA over five consecutive years (of which the yearly income must be at least €1,800 for four of the five years). There is an elevated minimum revenue for publishers, currently at €75,000 over five years (with a yearly minimum of €4,500 for four of those years).
The purpose of GEMA is to collect royalty fees from the organisers of events where music protected by this organization is played as well as media manufacturers, publishers, and broadcasting stations. GEMA collected 850 million euros in copyright fees in 2008. Disbursements go largely to the full members (2010: 64%), whose repertoire represents the lion's share of the listed works. The distribution of revenue and disbursement procedures are decided annually at the general assembly, which consists of approximately 3,000 full members as well as 64 delegates representing the associated and extraordinary members. The general assembly elects the 15 members of the board of directors (6 composers, 4 lyricists, 5 publishers). The board of directors appoints the chairperson.
According to GEMA by-laws, the delegates for the extraordinary and associated members must be appointed according to the following pattern: 32 delegates must be composers (of which at least 12 must be inheritors/legal successors), 12 lyricists (of which at least 6 inheritors), and 20 publishers. In 2010, there were 6 inheritors among the extraordinary members (0.1%) and 3,749 among the associated members (6.9%). As a consequence, a minority of 26 currently-active composers and lyricists must contend with a majority of 38 rights managers and legal successors.
Users of GEMA-protected works—primarily manufacturers of audio/video media, radio and television broadcasters, and the organizers of events such as music festivals, street festivals, Christmas markets and many more—procure the always-required usage rights from GEMA by paying a fee, which is to be paid to the rights-holders after the deduction of an administrative handling charge.
Fees and private copying levy
Licensing fees must be paid to GEMA for the public performance of protected musical works belonging to GEMA's so-called "world inventory" (); these are then paid out to its members according to a complex distribution scheme. The division of royalties operates through a points system, which distinguishes between "entertainment music" () and "serious music" (); for example, a single pop song is worth 12 points in this system, whereas a large orchestral work with a playing time longer than 70 minutes is worth 1,200 points.
According to Article 54 of , a private copying levy (or: blank media tax) can be applied to devices and media that "[...] are used for the making of reproductions [...]", which is already included in the price. This levy first goes to the German , and from there a portion is forwarded to GEMA. In 2004, the International Federation of the Phonographic Industry (IFPI) applied to lower the licensing fee rates for sound recording media from 9.009% to 5.6% of the manufacturer's price. GEMA criticized this push as "an attempt by the German phonographic industry to solve their problems on the backs and at the expense of creative composers and lyricists." In 2005, the board of arbitration of the German Patent and Trademark Office in Munich decided in favor of GEMA, preventing the proposed licensing fee rate-reduction. Other arbitration processes attempted by the IFPI (regarding music videos, downloads, and ring tones) in 2006 were decided in favor of GEMA by the board of arbitration of the German Patent and Trademark Office.
GEMA also exercises the rights of authors in the online sector. GEMA licenses responsible content providers, such as Musicload, Apple's iTunes Store, Spotify, Napster, and others. The data is provided by GEMA itself; since 1 January 2007, the exercise of online usage rights for certain parts of its inventory is no longer managed by GEMA, but rather through .
The charges for performances and background music are tiered.
The playback of GEMA-protected music in telephone systems as background music for answering messages or on-hold music also must be declared to GEMA. Many businesses (especially small ones) are unaware of this obligation. The same applies to the valorization of internet presence through audio-branding involving the use of music.
Since April 2003, GEMA offers access to its database of musical works on its website, including approximately 1.6 Million copyrighted musical works.
Legal basis
All collective rights management societies operate on the basis of laws and ordinances. Within the European Community, these collecting societies derive their legitimacy from constitutional protections for intellectual property and intangible assets, in the form of intellectual property law, which is enshrined in the constitutions of European states.
Although the concept of intellectual property had already been established in the 1866 constitution of the North German Confederation as well as in the 1871 Constitution of the German Empire, Article 14 of the current Grundgesetz () only generally addresses property rights, inheritance law, and expropriation, including the issue of intellectual property. By contrast, in the constitution of the free state of Bavaria—and also previously in Baden and Greater Hesse, which were formed before the Grundgesetz (1949)—the intellectual property of authors, inventors, and artists come under the direct protection of the state, which explicitly allows for the existence of collecting societies.
Furthermore, collecting societies receive their legitimacy from German author's rights (), which is legally regulated in all European states. German author's rights law () grants authors a range of exploitation rights () that the individual author would find difficult to exercise without the assistance of a collecting society, which is why the author transfers them. Transferred exploitation rights become usage rights () in the form of licenses.
In Germany, for example, this is regulated through the "law concerning the exercise of author's rights" () of 9 September 1965. The core of this law is the obligation to administer (Article 6, ) and the obligation to contract (Article 11, ). The former obligation means that collecting societies must prosecute all rights that have been transferred to them. The latter obligation means that they cannot refuse entry to any author (in the case of GEMA: composer, lyricist, or publisher) who has fulfilled all the entry requirements.
GEMA is governed by a double-obligation to contract, that is: 1) on the one hand, it must take on and exercise any usage rights that have been transferred to it from its members; 2) on the other hand, it must also provide licensing in exchange for money to any music-user making a request.
Copyright collecting societies in the European Union usually hold monopolies in their respective national markets, and German law recognizes GEMA as an effective monopoly. (Copyright Administration Act), 9 September 1965 German case law has established the so-called , a presumption that works are managed by GEMA due to its effective monopoly position. As such, in Germany the burden of proof is on the accused infringer that the work is not managed by GEMA.
History