Increase in GEMA and GVL fees?

The Federal Court of Justice (BGH) had to decide whether it is reasonable that dance and ballet schools must pay a 30% surcharge on the regular GEMA tariffs to the GVL. The Higher Regional Court (OLG) Munich had established this in the context of several proceedings in collective agreements concerning the remuneration for the use of music in dance courses and ballet instruction.

Interest associations, whose members include dance schools, opposed before the BGH the establishment of new collective agreements by the OLG München, in which the Society for the Exploitation of Related Rights – GVL, which represents the rights of performers and sound recording producers, was granted a 30% surcharge on the GEMA tariff.

The Higher Regional Court (OLG) Munich justified its decision with the growing importance of performing artists in the public performance of musical works.

Between the GVL and the interest associations of dance schools there were collective agreements whereby remuneration was to be paid in the form of a surcharge of 20% on the applicable GEMA tariff. The GVL had requested the OLG Munich to establish a 100% surcharge, as it took the view that the holders of related rights should be treated equally with the authors (composers and lyricists) represented by GEMA.

Neither the GVL nor the interest associations of dance and ballet schools were satisfied with the OLG's decision. Accordingly, they submitted the decision from Munich to the BGH for review.

Court decision

By judgment of 18.6.2014 – Az. I ZR 214/12 (press release) the Federal Court of Justice (BGH) did not approve the collective agreements established by the lower court and remitted the dispute to the OLG.

The BGH found that the OLG had not convincingly justified why remuneration in the form of a 30% surcharge on the GEMA tariff would be reasonable.

In particular, the court had justified the increase in remuneration with a growing importance of performing artists in the public performance of musical works, although it had itself assumed that this circumstance would not have a decisive effect on the ordinary use of music in dance schools. In particular, the performer of the musical work was not in the foreground when musical works were played in dance instruction.

Conclusion

Whether the 20% surcharge on the GEMA fee requested by the dance schools will remain is not yet decided following the BGH's judgment. The OLG Munich now has another opportunity to exercise its discretion and to establish the remuneration to be paid to the GVL with appropriately substantiated reasoning.