- A. Overview
- B. Compatibility with representation agreements
- C. Consequences for statutory remuneration claims
- D. Licensing under the NC licence variants
- E. The individual areas of representation
Literature: Fabian Rack, Collecting societies and open content – intersections and frictions, in Fischer/Klingner/Zill (eds.): Monopolies in the media industry complex? Collecting societies yesterday, today, tomorrow, 2023, 33; John Weitzmann, Double Cross, https://irights.info/artikel/doppelt-berkreuz-die-gema-und-creative-commons/7144; Ellen Euler, "VG WORT and Open Access: A Balancing Act for Scientists". LIBREAS. Library Ideas, 46 (2024); Axel Metzger/Tobias Heinemann, The Right of the Author to Grant Licences for Non-Commercial Use – Creative Commons Licences and the Directive on Collective Management, 6 (2015) JIPITEC 11, para 1.
A. Overview
1 When authors have their rights to their works administered by a collecting society, the question arises as to what extent they may also place their works under a CC licence. In order to make a statement on this, it is necessary to examine the extent to which members of collecting societies have already granted exclusive rights to a collecting society through the respective administration agreement. There are overlaps here, which are described in this section of the handbook.
2 Another aspect of free licensing in the context of collecting societies is the fate of statutory remuneration claims. CC licensing has no influence on collecting societies asserting statutory remuneration claims under the Copyright Act against device manufacturers or work users, for example for private copies permitted under copyright law or the use of works for research and teaching. With CC licensing, it therefore remains possible to participate in distributions from statutory remuneration claims.
3 Furthermore ,collecting societies must enable their members to grant non-commercial rights of use (Section 11 VGG). Members of collecting societies can therefore release the relevant content under one of the NC licence variants (CC BY-NC, CC BY-NC-SA or CC BY-NC-ND) for non-commercial purposes, while commercial uses are licensed regularly through the collecting societies .
4 Collecting societies are organisations that represent copyrights on behalf of their members, collect remuneration for the use of works and distribute it to the authors according to specific distribution keys. The granting of rights via collecting societies and CC licensing have in common that under both mechanisms, the need for bilateral negotiations to grant usage rights. However, a key difference between the CC licensing model and the management of rights by collecting societies is that the usage rights granted by CC licences are free of charge, whereas collecting societies grant usage rights in return for remuneration according to their respective tariff systems.
5 In Germany, 13 collecting societies are currently (October 2024) approved by the German Patent and Trade Mark Office; two more are still undergoing the DPMA approval process (C3S for music and the computer games collecting society for game manufacturers, VHG for short).
B. Compatibility with representation agreements
6 Anyone who wishes to license a copyright-protected work with CC requires the exclusive rights of use (see VorCCPL 40 ff.). CC licensing is therefore precluded if a collecting society has already been granted exclusive rights of use to a work by means of a representation agreement. This is often the case with rights representation by collecting societies, although a distinction must be made depending on the area of representation or the collecting society.
7 The representation agreements of the respective collecting societies regulate which rights are transferred for representation and to what extent. A distinction must be made between the representation of contractual rights of use and the representation of remuneration claims based on statutory permissions of use.
8 If the representation agreement with a collecting society stipulates that exclusive contractual rights for representation are transferred for all works already created and those to be created in the future, i.e. the entire oeuvre, this generally precludes CC licensing of the relevant works or categories of works (e.g. musical works for GEMA members) – apart from the possibility provided for by law GEMA members) – apart from the possibility of licensing under NC conditions provided for by law. C.
C. Consequences for statutory remuneration claims
9 If a management agreement has been concluded with a collecting society, the collecting society will usually also manage statutory remuneration claims, for example for legally permitted private copies (Section 53 UrhG) or for the use of copyright-protected content by educational institutions, science and teaching (Sections 60a ff. UrhG). Most statutory remuneration claims are non-disposable (see section 2.b.3 margin note 147 ff.). Insofar as CC licensing and the conclusion of a representation agreement for these remunerated claims are compatible, this does not contradict the fact that CC licensing generally allows for free use. In the area of statutory remuneration claims, remuneration must also be paid for works that have been made available under a CC licence, because the system of statutory remuneration claims must be considered separately from the rights of use granted under licence agreements. The CCPL only covers uses that are not already exempted by statutory permissions; all The CCPL only covers uses that are not already exempted by statutory permissions; all other provisions of the licence, including the exemption from payment, also apply only to uses based on the licence. CC licences do not apply to such statutory uses (see Section 2.a.2); Furthermore, licensors do not waive mandatory statutory remuneration claims (see the comments on sections 2.a.1 and 2a.2. and the unambiguous wording of section 8.a). As a result, it is possible to licence under CC and at the same time participate in the distribution of remuneration for uses permitted by law .
D. Licensing under the NC licence variants
10 Pursuant to Section 11 of the Collecting Societies Act (VGG), which implements Article 5(3) of the Collecting Societies Directive 2014/26/EU, collecting societies "lay down conditions under which the beneficiary may grant anyone the right to use his works or other protected objects for non-commercial purposes, even if they have granted or transferred the corresponding rights to the collecting society for management ". According to this, collecting societies must enable their members to grant rights of use themselves for non-commercial purposes. This means that the regulation opens up licensing for non-commercial purposes for members of collecting societies despite transferring exclusive rights. In Germany, the obligation to open up to CC licences is implemented in two different ways: Either the collecting society grants authorisation for non-commercial use from the outset, combined with a notification requirement for members,
E. The individual areas of representation
11 The following section outlines the specifics of the compatibility of VG membership with CC licensing with regard to the most important collecting societies.
I. VG WORT
12 VG WORT acts as a trustee for the rights and remuneration claims of authors and publishers of literary works and ensures appropriate remuneration within the framework of copyright laws and international treaties. To this end, numerous exclusive rights of use are transferred to VG WORT by means of a representation agreement (WV VG-Wort).
13 For authors in the field of publicly funded science, concluding a representation agreement with VG WORT and participating in distributions conflicts with the principles of open access and scientific ethics. [5]
14 When assessing the compatibility of the management of rights by VG WORT on the basis of the management agreement and the free licensing of the same works with a CC licence, a distinction must be made between statutory and contractual remuneration claims for commercial and non-commercial purposes:
15 VG WORT primarily asserts remuneration claims for legally permitted uses of written works (e.g. the remuneration claims under Sections 54, 54c UrhG for reproductions for private and other personal use in accordance with Section 53 (1) and (2) UrhG). These are assigned to VG WORT in full in the representation agreement. Since the scope of application of the CCPL only covers those uses that are not already covered by statutory permissions or statutory licence and for which remuneration is legally owed, the conclusion of a representation agreement and participation in distributions does not contradict the free licensing of the same works. If a representation agreement exists, CC-licensed works can therefore also be registered for be registered for distribution of the remuneration claims owed for statutory permissions. As a result, this means that the collection of statutory remuneration claims by VG WORT does not fundamentally conflict with CC licensing .
16 The situation is more complicated in the case ofcontractual remuneration claims for rights of use that go beyond the legally permitted uses under the UrhG, and in which VG WORT initially has an exclusive legal position on the basis of the WV-VG WORT. According to § 1 No. 1 to No. 49 WV-VG WORT, VG Wort is granted the power to exercise rights that go beyond the authorisation to exercise statutory remuneration claims, including, among other things, pursuant to § 1 (1) No. 13 of the CCPL, the administration of the "right of public performance of a published work (Section 19 (1) of the German Copyright Act (UrhG) [...]". This right falls under the public "distribution" of the material, which is licensed by the CCPL. However, since the same rights can in principle no longer be granted to the general public as simple rights after the conclusion of the licensing agreement, they are no longer accessible to CC licensing. This means that, as a result, the exercise of contractual remuneration claims by VG WORT is in principle contrary to CC licensing.
17 An exception applies to licensing for non-commercial purposes and is regulated in Section 4 WV-VG WORT. The exception is based on Section 11 VGG, according to which rights holders may grant anyone the right to use their works for non-commercial purposes. It is implemented in Section 4 WV-VG WORT as follows:
"Notwithstanding the granting of rights to VG WORT pursuant to Sections 1 and 2, the entitled party nevertheless retains the authority to grant anyone the right to use their works for non-commercial purposes. If they wish to make use of this right, they must notify VG WORT of the licence grant in writing at least two weeks in advance, specifying the work, licensee, type and scope of the rights granted. In such cases, VG WORT will not perform any accounting or distribution. The assertion of statutory remuneration claims remains unaffected by this."
18 This means that even if there is an existing representation agreement with VG WORT, individual texts can be made available to the the general public at any time without conflict and free of charge. This also applies if the publisher to whom exclusive rights of use have been transferred is a CC licensor and has, for its part, concluded a licensing agreement with VG WORT.
19 Furthermore, the WV-VG WORT expressly stipulates in § 4 that in the case of licensing for non-commercial purposes, the distribution of remuneration is limited to the statutory remuneration claims .
20 Licensing for commercial purposes – i.e. under all CC licence variants without NC restrictions – appears to be possible only to the extent that the rights have not already been granted as exclusive rights to VG WORT on the basis of the representation agreement. Licensing for commercial use is of particular interest in the the scientific field for scientific authors who, in fulfilment of institutional open access strategies and policies, are called upon to make the works they have created available to the general public under as open a licence as possible, i.e. in the best case CC BY. This raises the question of whether the free licensing of scientific publications, even for commercial purposes, contradicts the exercise of rights by VG Wort and whether scientific authors therefore lose their remuneration claims for legal uses, or what adjustments to the representation agreement are necessary .
21 With free licensing that grants simple rights of use for commercial purposes (all CC licence variants without NC reservation), the unmodified rights management agreement of VG WORT is fundamentally incompatible. However, according to § 13 WV-VG Wort, it is possible to limit VG Wort's rights management to individual rights and claims. Authors who wish to retain the right at all times to grant contractual rights of use for commercial purposes by means of a CC licence can clarify this by limiting VG WORT's representation to statutory remuneration claims and excluding all other granting of rights in accordance with § 13 of the representation agreement . It should be noted that such restrictions apply to the rights and claims of all works of the person entitled to representation and are not possible on a work-by-work basis (Section 13 (1) sentence 2 WV-VG Wort).
22 On the basis of the representation agreement of June 2024 (publicly available model agreement), it is sufficient to object to the transfer of all rights of use specified in § 1, while agreeing to the transfer of all statutory remuneration claims:
Based on the model agreement, the following should therefore be entered in Section 13 (2):
(2) The following are excluded from the transfer of rights:
a) Rights and claims pursuant to § 1 (1), numbers: 1; 5; 8; 12; 13; 19; 21; 22; 35–38; 40–43.
The same procedure can be followed for collection orders for foreign countries, which are concluded together with the representation agreement. The passage on the exclusion of individual rights and claims in the collection order can be found in § 2 (2):
(2) The following are excluded from the transfer of rights:
a) Rights and claims pursuant to Section 1 (1), numbers 1–4; 6.
23 However, even if this adjustment is not made, no practical conflict has arisen to date between CC licensing and the simultaneous exercise of rights by VG WORT. This is because there are no use cases with potential for conflict for the exercise of rights by VG WORT in the scientific field, as the exercise of rights is limited to an area that is not covered by the CC licences. For example, the right to rent out copies granted in Section 1 (1) No. 1 WV VG-WORT for reproductions pursuant to § 17 for licensed works is practically not in conflict with the exercise of rights, as the sending of copies on order will not cover these works in purely practical terms and, for example, the fee-based document delivery service "subito" cannot additionally offer freely licensed and freely accessible works for a reasonable fee.
24 Even for the other rights transferred in accordance with § 1 outside the statutory exceptions, the conflict is purely theoretical in nature. Since the rights and claims granted to VG WORT in accordance with § 1 WV-VG WORT for fiduciary management, which go beyond the statutory claims, have no practical application in the scientific field, VG WORT currently sees no need to amend the representation agreement.
25 However, it is desirable to establish practical and legal-theoretical concordance, which could be achieved, for example, by making collective rights management subject to the proviso that the rights are not assigned individually. It would also be conceivable to include the above-described exception to the transfer of rights of use as a standardised option in VG Wort's management agreements.
26 A third possibility would be for VG Wort to retransfer an unlimited number of rights of use for all purposes upon request, thereby making CC licensing permissible.
27 For authors with a VG WORT representation agreement, it should be noted that works can be made available under CC licensing in all variants (with and without NC reservation) without losing the right to remuneration within the scope of statutory remuneration claims. The representation agreement with VG WORT is practically The representation agreement with VG WORT is practically not in conflict with this ; VG WORT is aware of the licensing practices, particularly in the scientific field, even without NC restrictions, and accepts these without restrictions for the statutory remuneration claims it represents. II.
II. GEMA and C3S (music)
28 Unlike VG WORT, GEMA primarily manages contractual rights of use for the music sector. For this reason, CC licensing, which also grants contractual rights of use, is only possible to a very limited extent for music creators.
28 GEMA grants itself far-reaching, exclusive contractual rights with regard to compositions and lyrics.
29 Because the granting of rights covers the entire oeuvre
30 This limits the compatibility of CC licensing with GEMA membership to the option provided for in § 11 VGG of releasing musical works for non-commercial purposes, i.e. under CC BY-NC, CC BY-NC-SA or CC BY-NC-ND. According to the GEMA authorisation agreement, the procedure is as follows: A GEMA member applies for a "royalty-free GEMA non-commercial licence" ("GEMA NK licence") for one of their individual musical works. Once the application has been approved by GEMA, the member may either use the music/text works free of charge for non-commercial purposes – for example, for self-promotion – or may "grant anyone or individual persons a royalty-free licence for the non-commercial use of their works" (Section 1a of the GEMA licence agreement); The latter is made possible by CC licensing. When submitting the application, it must be specified whether non-commercial use is to be granted to "anyone".
31 Statistics from GEMA from early 2022 show that the option to grant non-commercial usage rights has so far only been used to a limited extent: for 34 works in 2017, for 64 and 63 works in the following two years, for 200 works in 2020 and for 160 works in 2021.
32 When using CC-licensed GEMA music, CC licence holdersmust comply with GEMA regulations
33 Around the 2010s, particularly in the music sector , there were calls to reconcile the CC licence model with the management of rights by collecting societies. The first European project to reconcile the two approaches was launched in the Netherlands in 2007. Members of the Dutch music collecting society Buma were also allowed to release their music online under CC non-commercial licences.
34 The internet policy debate of the early 2010s on file-sharing warnings and blocked access to music on YouTube provided the impetus for the establishment of another music collecting society in Germany, C3S (Cultural Collecting Society), in 2013. One of the founding promises of C3S was to guarantee its members full flexibility with regard to the CC licence model while offering the full range of services of a music collecting society. However, music creators are still unable to have their music rights administered by C3S However, music creators are still unable to have their music rights administered by C3S: even more than ten years after its founding, C3S is still not registered as a collecting society with the relevant German Patent and Trademark Office.
35 In any case, like many other players, C3S has contributed to establishing openness and initiating legal reforms .
36 One reason why the establishment of new collecting societies is no longer being pursued on a sustainable basis is the possibility opened up by the Collecting Societies Directive of a non-commercial licence for everyone, which at least allows CC BY-NC licensing. On the other hand, business models in the music sector have changed fundamentally with the advent of streaming services and easier access to music.
III. VG Bild-Kunst
37 VG Bild-Kunst acts as a trustee for the rights of authors in the entire visual field, and the granting of rights in § 1 WV VG Bild-Kunst accordingly covers all types of works in the visual field.
38 The rights administered by VG Bild-Kunst on behalf of authors in professional groups I and II are primarily statutory remuneration claims that can only be administered by collecting societies. VG Bild-Kunst is also assigned the corresponding rights of use for the uploading of third-party works by private individuals on social media platforms. These processes cannot be sensibly licensed independently by individual authors. Bild-Kunst is also granted the corresponding rights of use. These processes cannot be meaningfully licensed independently by individual authors .
39 The exercise of statutory remuneration claims by VG Bild-Kunst does not conflict with CC licensing. The above applies here: remuneration claims for legally permitted uses remain valid even with CC licensing because CC licensing does not interfere with the mechanism of statutory usage permissions and remuneration claims.
40 With regard to contractual remuneration claims for rights to uses that go beyond the uses permitted by law under the UrhG (e.g. the right of reproduction, making available to the public, archiving and transmission, in each case for the internal purposes of a company or public authority, of individual published works that have been legally acquired in each case, insofar as these rights go beyond the legal limitations of the German Copyright Act), in the absence of a legal position after the conclusion of a collection agreement, the same rights can in principle no longer be granted to the general public as simple rights and are therefore no longer accessible for licensed under the CCPL. As a result, this means that the exercise of contractual remuneration claims by VG Bild-Kunst fundamentally contradicts CC licensing.
41 However, according to the WV VG Bild-Kunst, the beneficiary may demand "that, in a specific individual case, the rights listed in § 1 relating to a specific work be transferred back to him for non-commercial use by third parties or for the purpose of granting a Creative Commons licence for non-commercial use in a a large number of cases or for their own use, the rights listed in § 1 relating to a specific work be transferred back to them, provided that these are not rights subject to collecting society fees or statutory remuneration claims."
42 Unlike the WV-VG Wort (in § 13), the WV-VG Bild-Kunst does not provide for a general possibility to limit the scope of the rights granted by the WV Bild Kunst and to reserve individual exploitation for commercial uses.
43 This is not a problem for the exercise of rights under § 1 (1) in relation to professional groups I and II, as these rights either relate to statutory remuneration claims or, insofar as they go beyond this, can be transferred back (see § 1 (1) No. 1.21 a) "the right of public communication, in particular the right of making available to the public (including the right of reproduction necessary for this purpose), for licensing to "service providers for sharing online content" in accordance with Section 2 UrhDaG (service providers) for the purpose of providing the public with access to copyright-protected works uploaded by their non-commercial users (Section 6 (1) UrhDaG). The beneficiary may, if The entitled party may, if there is a legitimate interest, demand that the rights referred to in sentence 1 of this paragraph be transferred back to them in relation to a specific work and a specific service provider."
44 Members of professional group II (image authors such as photographers) may therefore provide their works with a CC licence without NC reservation, provided they have made use of the option under Section 2 WV VG Bild-Kunst.
45 Members of professional group I (visual artists such as painters), on the other hand, must ultimately decide whether to conclude a representation agreement with VG Bild-Kunst, which also permits CC licensing for non-commercial purposes, or whether they also wish to license without NC reservation, as this professional group has the right to grant licences without NC reservation in addition to the rights transferred in accordance with § 1 (1) in accordance with § 1 (2) WV Bild Kunst grants them "the right of reproduction and distribution pursuant to Sections 16, 17 (1) UrhG and the right of public accessibility pursuant to Section 19a UrhG", and no retransfer is provided for in this regard.
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Open Access Kommentar, Commentary on G. Collecting societies is licensed under a Creative Commons Attribution 4.0 International License.
