MSeveral music companies will soon file a constitutional complaint. This is announced by Florian Drücke, CEO of the Federal Association of the Music Industry (BVMI), to WELT. Which companies are specifically involved in the complaint has not yet been made public, says Drücke. The complaint is directed against the German implementation of the EU Copyright Directive. This was decided by the Bundestag with the votes of the grand coalition in May last year. The amendment to the law is intended to secure copyright in the digital age, because it has become easier to use the intellectual property of creative people for their own purposes without paying for it.
Large parts of the German music industry are dissatisfied with the implementation of the important amendment. A report by the constitutional lawyer Christoph Möllers from April 2021 had certified the music companies that their constitutional concerns about the wording of the law are not unfounded. Individual regulations in the law could lead to “massive damage” to artists, the BVMI had warned at the time.
“We presented our constitutional concerns in the legislative process,” says Florian Drücke. However, these have not been cleared up, so the complaint is consistent: “In the end, we have no other choice.” Because: “In our view, the German implementation of the EU directive is flawed and in parts does not correspond to the European requirements.” The complainants will be legally represented by constitutional lawyer Möllers as one of the authorized representatives.
Specifically, there are two sub-regulations in the law, which were also highlighted in the Möllers report. About a “presumably permitted use” parts of a work, about 15 seconds from a piece of music or film, can be used publicly by any non-commercial user for a small flat fee free of liability. For example, on platforms like YouTube, Instagram and TikTok. The regulation was intended to strike a balance between the right of ownership of protected works and fundamental communication rights.
According to expert Möllers, however, the “presumably permitted use” leads to a “loss of control” over excerpts of protected content – such excerpts are often the “highlights” of a work. The permit reveals such content “to an unmanageable circle of users at the expense of the rights holders”. The BVMI likes to refer to the example of TikTok – very short music videos are shared on the platform.
The use of such popular excerpts is no longer possible with the regulation, which also violates the right to freedom of contract. Although the EU allows leeway in the implementation of a directive, but, at least according to the position of the music industry, the implementation even prevents the author from being able to evade use on a platform. The implementation is therefore not compatible with European Union law. If necessary, the issue must be clarified before the European Court of Justice, says BVMI boss Drücke.
How seriously is the creative economy taken?
While the implementation goes back to the old coalition of CDU and SPD – the Ministry of Justice was headed by SPD Minister Christine Lambrecht, today Defense Minister – Drücke also criticizes the new coalition in the conversation. “We have to deal with how the creative industries will continue after Corona, and we have to deal with the framework conditions of the platform and attention economy,” said the head of the association. “But so far, our offers for talks have only been accepted to a limited extent. In some cases, one avoids dealing with the content of the topics.”
Last year, numerous associations and organizations from very different creative industries (including music, film, publishing houses, fashion, design, art, games) started a new initiative, the coalition k3d, which stands for “Coalition for Cultural and Creative Industries in Germany”. . The creative economy sees itself as the third largest economic sector in Germany behind the automotive industry and mechanical engineering. Nevertheless, neither the economic nor the social influence of art and culture is sufficiently recognized – and politically one falls through the cracks.
The initiators had formulated the goal of creating a central position in the new federal government that would take care of the needs of the creative industries. It was said at the time that this should not refer from one ministry to the other, but rather pool forces. In fact, the following passage was then included in the traffic light coalition agreement between the SPD, the Greens and the FDP: “We will anchor a contact person for the cultural and creative industries in the federal government, simplify and improve funding for creative, non-technical innovations as well. ”
“After the coalition agreement, there was a long, great silence. It’s still going on,” says Drücke. “In the talks we had, we always made it clear that from our point of view the best solution would be to appoint a person in the Ministry of Economic Affairs who would act as the contact person for the creative industries in the federal government. Someone has to put their shoes on.” In addition to the Economics Ministry, there is also the Federal Commissioner for Culture and Media, Claudia Roth, as a possible contact point.
“The idea that the coordination between the Commissioner for Culture and Media and the Ministry of Economic Affairs would be easier simply because both belong to the Greens is naïve,” says Drücke. It was no different in the previous government either: “The politicians in question both belonged to the CDU and we often had the impression of sitting between two chairs. Our concern is that this will continue.”
In the Ministry of Economics, for example, a start-up strategy was developed within six months and a representative was appointed. The creative industry, on the other hand, is still waiting. “Unfortunately, the difficulties along the way show once again how difficult it is to deal with the creative industries in Germany,” says Drücke. And adds: “Our impression is that the creative industries have long been taken much more seriously at European level and treated much more fundamentally than here in Germany.”