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ESDANEWS: GERMANY

VDT - Verband Deutscher Tonmeister e.V.

In Germany, there is still a considerable uncertainty as to when a music producer may claim to have performed a conducting role qualifying him as a holder of neighbouring rights and entitling him to revenues as a performing artist under the statutes of the collecting society GVL.

As there are no generally agreed abstract criteria for this, however, the practice is that the musicians have to agree and confirm in writing to the studio producer that he has had an influence as a conductor upon their playing or singing performances for the recording. Under these conditions, German studio producers have a very good chance of being accepted by GVL as qualifying for revenues.

In practice, the issue of terminology may still have an impact. Whereas officially, the title under which a German music producer makes his claim, be it “Tonmeister”, “Klangregisseur” or others should have no bearing on its success, in practice, legitimate claims by German music producers are sometimes refused by GVL if made as a “Tonmeister” - probably the most traditional term. This produces a glaring inconsistency when compared with English colleagues doing the same work but calling themselves “Sound Director” or “Music Producer” who have no problem in making successful claims.

However this is, of course, only part of the problem. One decisive issue in Germany is derived from a dichotomy between the legal interpretation of a ‘fixation’ and the changes in the recording process. In the past the ‘fixation’ of a recorded work unambiguously took place when all the musicians performed once and at the same time. However, modern multi track discontiguous recording allows musicians to make separate recorded contributions so that the final artistic interpretation of the overall work is left until the separate performances are assembled in a ‘mix’. These new processes occur in productions of classical as well as all forms of contemporary music.

The neighbouring rights collecting society in the German jurisdiction, GVL, choose to apply the traditional interpretation of the term “performance” in § 73 of the German Copyright Act.

This limited and archaic interpretation only allows individual and ensemble live-recorded contributions to qualify as performances capable of direction by a music producer. Any subsequent artistic adjustment, modification or re-application is regarded as a technical contribution and therefore can, in their opinion, not be accepted as a qualifying ‘performance’.

Despite several calls for new domestic legislation that recognizes the new recording techniques, the legislative bodies have, for quite some time, been preoccupied with the challenges of technical developments in the protection of intellectual property rights such that there has been no priority given to a more fundamental revision of the group(s) of right holders that are now essential contributors to commercial sound recordings. We would hope that such revisions would, besides the changes in performing / recording practices in the studios, also take into account the social and economic changes that music producers have experienced moving from ordinary full-time employees enjoying the full protection of labour laws and social security to freelance artists who need adequate protection mechanisms like copyright law.

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