The artist has its own ancillary copyright, he therefore has to approve every economical evaluation of records of his event by himself. The right of the organiser exists parallel to the right of the artist. The artist does not lose its ancillary copyright by working together with an organiser, who is a member of the GWVR. The artist keeps the right to decide if a live-record of his concert should be created and how this record, if necessary, should be evaluated. In the artist’s decision for an organiser the professionalism and the performance of the organiser remains crucial to him. Whether the organiser is or is not a member of the GWVR doesn’t matter to the artist.
However, it is possible that in the future phonogram producers tend to select records of non-members of the GWVR for live-publications on CD or DVD. The question, which events will be published on CD/DVD is however independent from the question, which organiser is from the artist’s point of view the perfect contract partner for the execution of the concert itself – by joining the GWVR there are no changes to the second question.
Joining to the GWVR therefore does not mean a competitive disadvantage in the acquisition of artists.
The right of the organiser according to § 81 UrhG (Copyright Act) is an ancillary copyright. Ancillary copyrights are similar to the copyright. However, they do not protect the originator’s creative design work, but rather reward investments, work performances and organisational accomplishments, which are required to develop certain contents. The organiser has, similar to a film producer or a phonogram producer, an ancillary copyright. The organiser therefore has to give his permission before a record of an event is produced, duplicated or distributed, broadcasted in radio or made available online.
The right under § 81 UrhG only applies to events if practising artists perform during an event. Solely sports events are therefore not covered under § 81 UrhG. For example, the solely reproduction of picture and sound carriers at a disco does not represent a protected event under § 81 UrhG. However, a performance of a famous DJ may be affirmed as protected under § 81 UrhG because of its artistic character. Moreover, the event has to take place in front of an audience. In our opinion it does not matter if it is a public or non-public event.
Chargeable licences have to be acquired by users of event records from the GWVR. In particular: Phonogram and video producers of live events such as concerts, operas, stage plays, literature readings, etc. Radio stations, which broadcast live records and online services which distribute the live records as a stream or download, such as YouTube.
The GWVR only collects the remuneration for certain standard forms of the commercially evaluation of live records. The GWVR, however, can not give permission to produce a live record of an event. This right remains to the organiser even after joining the GWVR. Also the right to give permission to combine its event record with advertising messages (synchronisation) remains to the organiser. By joining the GWVR the organiser therefore does not lose the option to allow or disallow specific recordings in the above mentioned fields.
Radio stations do already pay copyright charges to the GEMA and GVL for broadcasting records. Empirically, this does not lead to a high economic burden for radio stations. Especially it does not lead to avoiding the broadcast of contents which need licences. It is not expected that radio stations will waive, wholly or partially, the broadcasting of live records to avoid payments to the GWVR.
The tariffs of the GWVR for the online section will be established by the GWVR itself, but supervised by the German Patent and Trade Mark Office. Whereby, as far as possible, a coordination with the associations of the concerned licensees shall be carried out. Therefore, the tariffs of the GWVR will be closely aligned to the organisers practical needs. They will therefore provide scope for the free use and proliferation of short records and the dissemination over Facebook or the internet to not complicate viral marketing.
Organiser and therefore holder of the ancillary copyright under § 81 UrhG is who has the financial and organizational responsibility for the event. It depends on the circumstances of the individual case if the local organiser or the tour organiser is the entitled person or if they have to share the ancillary copyright. Such questions also exist among other ancillary copyrights. For example, the ancillary copyright for phonogram producers or the ancillary copyright for film producers. During the production of phonograms or movies often multiple companies work together collaboratively and also share the economical risk. Therefore, it may also be unclear who holds the ancillary copyright. In practise the companies working together define the holder of the ancillary copyright in their contracts. Such a clarification is likewise recommended for the organiser right. Domestic organisers savour under § 81 UrhG for the German territory not only protection for their domestic but also for their foreign records. If a German organiser organises a concert in the USA, he holds the rights for the records according to § 81 UrhG. This also holds for certain foreign organisers if a registered office is located in the European Union or the ECC. To what extent companies without a registered office in the EU/ECC are entitled in accordance to § 81 UrhG is controversial among legal literature and not yet clarified by jurisdiction.
Like all collecting societies, the GWVR has to set up distribution plans and is in doing so subject to the control of the responsible supervisory authority, the German Patent and Trade Mark Office. This also holds for the actual business activity. It is the responsibility of the advisory board of the GWVR to set up the distribution plans. The following principles have to be respected: The distribution of the collected monies will be based on the notifications submitted by the entitled persons. As far as ascertainable with adequate means, every entitled person shall receive his share of the amount to be distributed in accordance to the exploitation of his rights. As far as the individual share is not determinable with adequate means, general rules for assessment and distribution shall be established for an approach to the individual share. In general, the collected monies shall, after deduction of the administrative expenses, be distributed 1:1 to the entitled persons. Each entitled person shall receive those amounts which are actually paid by the licensees for the use of their events records. However, the law in § 32 VGG provides a deviation from this principle to encourage social and cultural purposes. In accordance to the articles of association of the GWVR a maximum of 5% of the income can be used for such purposes.
The administrative costs of the GWVR are depending on the costs, which the GEMA and the GVL charge for their collection activity. Since these costs are not yet determined and are still subject to negotiation, the administrative costs of the GWVR are not yet quantifiable. It is aimed that the administration costs of the GWVR are comparable to the administrative costs of other collecting societies, or lower, after the development phase. It depends not least on the number of organisers, who join the GWVR.
The GWVR charges a one-time admission fee, which amount is based on the last fiscal year annual turnover. Further costs do not arise for the organiser. In particular, there is no annual membership fee or similar. The GWVR covers its costs from a part of the amounts collected and forwards the remaining amounts to the entitled persons.
The GWVR aims to provide organisers with a fair share of the income, that radio stations, phonogram producers and online services such as YouTube or Spotify make by using records of events. An organiser can therefore then expect money from the GWVR if records of his events are being used commercially. But even if this is the case, organisers shouldn’t expect huge amounts from the GWVR during the initial period. The building of a collecting society to use a yet widely not used right takes inevitable some time.
In many cases, public radio and TV stations demand that the organizer guarantees that no claims will be made against the GWVR. In our opinion, such contractual clauses are illegal, as they are inadmissible general terms and conditions. To the detriment of the organizer, they deviate from the legal standard case, according to which the organizer’s right must be adequately remunerated, just like other industrial property rights. Irrespective of this, the broadcasting tariff of the GWVR provides in any case that broadcasters pay an annual lump sum to the GWVR to compensate for all live broadcasts, which the GWVR distributes to its members. Therefore, the broadcasting corporations do not even know which broadcasters are members of the GWVR. The contract clauses of the broadcasting corporations are therefore practically ineffective.
The organizer has the economic and organizational responsibility, thus concludes in particular the contracts with the audience and the artist. Typically, the organizer is named on the ticket and in the ticketing system. Several co-organizers can also work together on a division of labor. In case of doubt, it should be specified in writing which of them is entitled to the rights from § 81 UrhG. If this has not been done and it is therefore unclear who is the (co-)organizer within the meaning of §81 UrhG, the GWVR will provide a pretender procedure for clarification.
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