Germany: New German Copyright Bill

Last Updated: 19 June 2001
Article by Mathias Schwarz

The German government on May 30, 2001 has introduced a bill intended to improve the situation of authors and performing artists. The intention of the draft law is to reinforce the contractual rights authors and performing artists have under their agreements with publishers, producers, and other entities exploiting their works.

In order to achieve this aim, the bill provides for a statutory claim for equitable remuneration for all uses made of a copyrighted work or any performance. Such statutory claim is in addition to any contractual claim and would be directed not only against the immediate contracting party, but against any entity using the work or the performance within Germany. It would not be limited to claims deriving from contracts governed by German law, but would apply to foreign works that are exploited in Germany as well. Any contractual remuneration received by the author or the performing artist could be set off against the statutory claim for equitable remuneration. The claim will exist for the lifetime of the copyright and/or the protection period for the performance and there is only a statute of limitation after ten years from the date of each use.

In order to increase the enforceability of such claim for equitable remuneration, a mechanism is to be introduced by which associations of authors or performing artists can request from associations representing users of copyrighted works or performances to agree to remuneration rules. In case no agreement can be reached there will be an obligatory arbitration procedure, or alternatively the remuneration rules will be set by the copyright tribunal (Schiedsstelle) which in the past was competent to hear disputes about the equitability of tariffs set by collecting societies.

In addition to these two main sets of rules the draft law provides a panoply of further measures intended to strengthen the position of authors and performing artists. To name only a few: the possibility to agree on limitations of personality rights (such as the right of paternity or the right to make modifications of or amendments to the work) shall be restricted and the author is given a right to revoke any consent given in this respect with effect for any future uses. In the case of film and television productions the rights of authors and performing artists are to be reinforced by making it easier for them to claim that the final version of the film or television production distorts their works used in the course of producing such film work. It is also suggested that any transferee of exploitation rights shall be cumulatively responsible to fulfill any outstanding obligations that the transferor of such rights may have vis-ŕ-vis the authors. Any remake rights in a film or television production may not be granted for more than ten years, after which time such rights will automatically vest with the author again. The prohibition of any grant of right for uses which are unknown at the time of entering into the contract that already exists for authors in the present Copyright Act is to be extended to performing artists who, as a consequence thereof, could claim that an agreement on the transfer of such rights be reached before their performance can be exploited in any form of a use which becomes known only at a later stage.

The bill and its predecessor, a draft prepared by five copyright professors, has met with great resistance from the side of the producers and other users of copyrighted works and performances. It is feared that its regulations would lead to an increase in copyright litigation and would create a need for very complicated accounting mechanisms. Whereas it may be true that some of the results intended by the draft bill may be found in the US Guild Agreements and/or the French copyright law, it is the clear view of the copyright industries in Germany that the means to achieve this goal as suggested in the draft bill are tremendously complicated and do not take at all into account the interests and needs of the copyright industries. This could lead to a clear weakening of the German media industries on the international level.

As it seems to be the clear intention of the present government to get the law passed before of the end of the legislative period (fall 2002), it is very likely that a very heated debate will go on until the reform, in its present or a modified form, will become law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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