No 'making available' without 'reproduction' rules German court in CELAS case

From Dr Martin von Albrecht (K&L Gates) comes news of an important decision last month in which he was personally involved. He writes:

In a declaratory judgment action filed by the company MyVideo (represented by K&L Gates Berlin) against CELAS, a joint venture of the German collecting society GEMA and the UK collecting society MCPS-PRS, the District Court of Munich (Landgericht München) decided on 25 June 2009 that CELAS has no right to prohibit reproductions of the Anglo-American repertoire of EMI Music Publishing Ltd online in Germany.

MyVideo provides an ad-financed website in German (myvideo.de) that, just like Youtube, enables the streaming of user-provided video content over the internet. CELAS, which was set up by GEMA and MCPS-PRS to manage on a pan-European basis the so-called mechanical reproduction rights for online uses of the Anglo-American repertoire of EMI Music Publishing Ltd, had claimed that MyVideo needed a CELAS licence with respect to EMI songs uploaded on its server as part of videos.

The District Court of Munich held that, in general, making available copyright works online required imperatively both making available rights and mechanical reproduction rights, since the act of making available online was technically not feasible without a reproduction. In such a case of union of rights, however, German copyright law did not allow a splitting of making available rights and mechanical reproduction rights for online uses. The court held that, as a consequence, EMI could not have validly transferred only mechanical reproduction rights for online uses to CELAS while the making available rights were still managed by GEMA.

The decision confirms that, in Germany, GEMA still functions as a one-stop-shop for the world-wide repertoire which offers all making available and reproduction rights necessary for online uses. Users do not have to negotiate separate deals with business models such as CELAS or PEDL (Warner) for mechanical reproduction rights. Instead, they can obtain comprehensive licenses from GEMA in a fast and efficient manner - also for the benefit of all copyright holders.

The impact of the decision may be bigger than it seems at first glance because it would stop all the publisher models of withdrawing the mechanical online rights from the collecting societies. The grounds of the German court's decision are in line with the Commission's decision of 6 July 1972 (72/268/EWG, ABl. 1972 L 166/22 GEMA II). The Commission found that "all economically dividable forms of exploitation of copyright under consideration of the differences of the national laws could be transferred separately".

Further analysis of this decision by Dr Albrecht can be found here.