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Copyrights, a licensing deal and its legal limits

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Copyrights, a licensing deal and its legal limits

In order to make their appearances on Facebook and Instagram as appealing as possible, many entrepreneurs distribute self-created (advertising) videos with musical accompaniment. It is rarely taken into account that other people’s music titles enjoy copyright protection and that using them in one’s own videos without the appropriate licenses would actually be illegal. Special features apply to Facebook and Instagram in the EU due to a framework agreement with collecting societies. The following article shows whether and to what extent music in videos can be distributed on Facebook and Instagram without the prior consent of the authors.

I. Music tracks in videos: copyrights and the Facebook license deal

Pieces of music generally enjoy copyright protection as works in accordance with Section 2 Paragraph 1 of the Copyright Act (UrhG).

The right to publicly reproduce, reproduce or distribute pieces of music is reserved to the respective author. § 15 Copyright Act.

The use of a piece of music to accompany a specially created music video constitutes reproduction (Section 16 Para. 2 Copyright Act), the legality of which regularly depends on the consent of the author.

If videos with third-party music are distributed by entrepreneurs, this is always an act that requires copyright approval. On social networks, the same also applies to videos with a musical background made by private individuals, because the exception of “reproduction for purely private use” according to Section 53 of the Copyright Act does not generally apply. After all, a video posting on Facebook or Instagram has a reach that goes well beyond the private sphere due to its public visibility.

In Europe, the rights of authors to pieces of music are managed by so-called collecting societies, which negotiate usage rights and license fees for the authors and carry out legal enforcement.

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Of central importance at the European level is the organization of the “International Copyright Enterprise Operations (ICE)”, an association of leading national collecting societies founded by the German GEMA.

This organization now has a special feature for your own videos with other people’s music on Facebook and Instagram:

In 2018, Facebook entered into an extensive licensing deal with the organization:
By paying flat-rate license and royalty rates by Facebook itself, the use of music by all artists represented by ICE on Facebook and Instagram in videos is intended to be compensated for under license law and thus become permissible under copyright law.

As a result of the license deal, Facebook and Instagram users are generally allowed to distribute videos with third-party music under copyright law, provided the artists are represented by ICE under copyright law.

II. Range of permitted uses on Facebook and Instagram

What initially sounds like a universal solution to potential copyright conflicts for users on Facebook and Instagram should, in reality, be viewed with caution.

The legal details and limits of the license deal with ICE are kept strictly secret by Facebook, so that it is not transparent to anyone to what extent, to what extent and in what way music can be distributed in videos in such a way that you can benefit from it covered by the license deal.

From Facebook’s side, in the “Guidelines for Including Music in Video“Only individual clues are communicated that can be used to limit the permitted usage actions:

1.) The license deal applies equally to private and commercial users. Commercial profile, account and page owners benefit from the permitted uses just as much as private individuals2.) The license deal applies to all forms of distribution on Facebook and Instagram (posts, stories, etc.)3.) The license deal applies to both the storage of videos with music also for recordings of artists’ live performances4.) Only videos with visual content are covered by the deal. Pure audio recordings are outside the scope of the deal and violate copyrights without the individual consent of the author.5.) In principle, only individual titles or sequences are included in the deal and are therefore readily permitted. The more complete pieces are stored in a video, the more likely it is that you will fall out of the license deal

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It is obvious that users have little use for the very vague provisions and can hardly assess their right to use music under the license deal.

Facebook therefore provides a function that automatically detects when a video is uploaded whether the music in the video exceeds the limits of the license deal and alerts the user to this. If the user does not change the sequences, Facebook may take measures ranging from muting individual video parts to deleting the entire content.

At the same time, Facebook offers with the “Sound Collection“A library of music pieces and sequences, the use of which for videos on Facebook and Instagram is always covered by the license deal and is therefore readily permitted under copyright law.

III. Serious transparency gaps

What was well-intentioned by Facebook for the purpose of worry-free distribution of music in videos only apparently makes it easier for users to distribute music content in accordance with copyright law.

Since the license deal with ICE is kept completely under wraps, it is not possible to reasonably understand when and under what conditions a piece of music is covered by it and when it is not.

This lack of transparency poses a serious legal risk for users: as a measure if license rights are exceeded, Facebook threatens to delete or mute videos. What is more legally significant, however, is that in the event of excessive use, copyright claims arise directly against the user, which Facebook does not protect.

Anyone who distributes music in videos in such a way that it exceeds the unknown limits of the rights granted under the license deal with ICE will, in the worst case scenario, be exposed to copyright defense claims from the management companies via Facebook’s internal sanctions.

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Facebook’s internal warning function, on the other hand, is of little help because Facebook only corrects the license standards later, but not simultaneously. This means that pieces of music that are not covered by the license deal and are therefore in breach of copyright can first circulate and trigger defensive claims before the unlawful use by Facebook is later stopped.

In order to avoid the legal risks that arise from the lack of transparency of the license deal, the following is recommended:

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