What is free folk music
The "Musicians-friendly Wirtshaus" campaign was initiated to revive the spontaneous singing and making music in the dining room without admission, program or stage and thus to consciously bring to the fore an area of musical folk culture that was increasingly being forgotten or suppressed. Economic reasons are not in the foreground, it is not an "event" with an entertaining character, but rather the possibility for singers and musicians to sing and make music spontaneously and freely.
In the field of folk music, the majority of the repertoire has been handed down and no author can be traced. This is usually GEMA-free, i.e. no society exercises the copyright on these songs and pieces. However, there are now exceptions, e.g. because an author or editor has become a member of GEMA or another copyright management society such as AKM or SUISA. In addition, even spontaneous singing or making music before the law is a "public performance" - contrary to popular understanding. An exception to this is "singing for personal enjoyment" (e.g. open singing).
The legal situation is clear:
Section 13b of the Copyright Administration Act (obligations of the organizer) reads:
(1) Organizer of public Renditions copyrighted works must obtain the consent of the collecting society before the event, which exercises the rights of use for these works (GEMA, in Austria AKM).
(2) After the event, the organizer must send the collecting society a list of the works used at the event. This does not apply to the reproduction of a work by means of a sound carrier, for the reproduction of radio broadcasts of a work and for Events at which, as a rule, unprotected or only insignificantly edited works of music are performed.
Conversely, this means that these obligations on the part of the organizer (register the event with GEMA and submit a list of performances) do not apply. However, if something that is subject to GEMA is played against the rule, the event must be reported subsequently and of course also subject to a fee. The deadline for late registration is three days! When setting tariffs by GEMA, appropriate consideration must be given to the proportion of the use of the work in the overall scope of the program (Section 13 (3) sentence 3 UrhWG). In any case, the minimum remuneration is € 10.00.
Thus, in cases in which only individual protected works were performed, the organizers should ask GEMA to reduce the performance fee. However, this presupposes that an exact list of all music titles played is provided (GEMA requires the specification of the work title, e.g. Scottish, composer and / or publisher). In this respect in particular, the statutory provisions are not very practical. Who exactly can keep records of spontaneous singing and making music - as is typical for folk music? We therefore recommend that you only use music in "musician-friendly taverns" whose performance rights are not exercised by a collecting society such as GEMA or AKM ("GEMA-free" music).
However, those organizers who have concluded a flat-rate contract with GEMA (e.g. hosts or member associations of traditional costume, choir and brass music associations) must be careful. In such contracts, contrary to the text of the law, it says "that the members are required to register every musical performance with GEMA in advance ... and to send an exact program of the listed works to GEMA immediately after each event" (framework agreement GEMA / Bavarian Trachtenverband ).
GEMA often receives a copy of the registration for events that have to be registered with the local municipal administration (public entertainment of all kinds such as folk dance evenings). If only public domain or only insignificantly edited folk music pieces are performed at the event (see above), an organizer should then insist that the municipal administration does not forward the copy to GEMA. Furthermore, the organizer should ensure that the participating music groups only perform music that is not protected.
Nevertheless, it can happen that the organizer receives an invoice a few weeks later because GEMA has learned about the event from the local press and assumes that the repertoire represented by GEMA could have been played. It is not advisable to ignore this invoice, as a dunning notice and legal action will follow soon. It is better to give GEMA a credible assurance - ideally with appropriate evidence and explanations from the participants - that the repertoire it manages has not been tampered with. If you have any problems or doubts, you can contact the folk music advisor of the Bavarian State Association for Home Care (see www.heimat-bayern.de for addresses) or the relevant district staff.
We have had good experiences when the responsible GEMA regional directorate has been notified of the event beforehand, stating that only unprotected folk music will be performed and that they therefore want to refrain from invoicing. It is conceivable that GEMA occasionally also controls such events; Truthful information should therefore be a matter of course in any case.
If the music repertoire managed by GEMA was interfered with at an event, but there is a clear disproportion between the actual income and the GEMA demand due to the lack of the expected number of visitors, the GEMA tariff fees can be reduced at the request of the organizer. Instead of the otherwise applicable tariff rate, only 10% of the actual income will then be charged.
Which music titles can be performed free of charge cannot be answered in one sentence. The term of protection for works of music expires 70 years after the death of the author (composer, arranger).
According to the general opinion of all institutions involved in the maintenance of folk music in Bavaria, folk music should be in the public domain, especially since the majority of the repertoire comes from tradition and an author can often not be identified or is unknown. However, since newly created songs and pieces of music or possibly protectable adaptations of pieces in the public domain are continuously incorporated into the transmission process, these are subject to copyright law. It is then to be checked whether it is also perceived. A first hint for music editions is the note "All rights reserved" or "Copyright by ..." In contrast, the institutions of folk music care and fortunately also other editors and authors allow the public performance of the songs and pieces of music they have published without prior approval and performance fee. Such editions of notes usually contain a corresponding preliminary remark.
The safest way to do this, however, is to contact GEMA directly. According to Section 10 UrhWG, GEMA is obliged to provide anyone, upon written request, with information on whether they are exercising rights of use for a particular work or certain rights of consent or remuneration claims for an author or holder of a related property right. Such inquiries should be addressed to: GEMA General Directorate Berlin, Members and Documentation Division, PO Box 301240, 10722 Berlin, Tel. 030 21245-450 or -451, Fax 030 21245-950, email [email protected]
GEMA's service for repertoire research via the Internet should be used with caution (https://online.gema.de/werke/). The information value of this online database is unsatisfactory, especially for folk music.
You can find publication lists with GEMA-free songs and pieces of music ... HERE
Further information: www.gema.de
Authors: Dr. Elmar Walter (2010), Franz Schötz (2004), Dr. Erich Sepp (1998)
To download the text ... HERE
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