‘GEMA – No-access signs’ on YouTube constitute unfair competition

With verdict of 7 May 2015, the Higher Regional Court in Munich (OLG Munich) has confirmed the prior decision of the Regional Court in Munich, that YouTube may not publish notices in regard to inaccessible music videos, that create the wrong impression with users that GEMA is responsible for the inaccessible music videos.

GEMA is the German collecting society for usage rights and royalties of copyright protected works of music (as far as the right owners belong to the more than 69,000 members of GEMA or to the over 2 million right owners worldwide that GEMA represents). GEMA and YouTube are in a long-lasting dispute concerning appropriate royalties for music rights in YouTube videos. Therefore, YouTube blocks numerous videos for German users if they could contain music from the GEMA-repertoire. At the same time YouTube displays a notice, which had the following content in the past:

“This video is unfortunately not available in Germany as it may contain music, for which the necessary music rights have not been granted by GEMA. We are sorry.”

The OLG Munich has now confirmed the opinion of the claimant GEMA, that such notices constitute unfair competition, as they create the wrong impression with the public, that GEMA is responsible for the blocking of the concerned music videos, whereas YouTube is blocking those music videos as it is not paying any royalties to GEMA. As GEMA points out, even during the ongoing license dispute, YouTube would be able to legally show the respective videos, as the law provides that in case of such dispute, the user of music rights can obtain a statutory license by depositing the disputed royalties on a neutral blocked account. But YouTube refuses to do this as they invoke a liability privilege pursuant to the German Telemedia Act (TMG) and do not consider themselves responsible for videos used on their internet platform.

The concrete verdict has not yet been published. According to information of GEMA the OLG Munich has not permitted a further appeal against this verdict.

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