German Parliament on January 25, 2002 approved the new copyright provisions intended to improve the contractual protection of authors and performing artists. This decision was preceded by 18 months of heavy lobbying from all parties involved. The last days before the new bill was enacted saw a number of hectic last minute changes. Quite a few of the provisions of the new law certainly create new concepts for the protection of authors and performing artists which have no parallel in other jurisdictions. It needs to be seen whether they will instigate other legislators to follow suit. The most relevant changes are the following:
1. Authors and performing artists are given a statutory right to an equitable remuneration. If the remuneration agreed upon is deemed not to be equitable the authors and performing artists, during a period of three years from the date they contracted, may claim additional compensation up to the equitable remuneration.
2. A remuneration is equitable if it is conformity with either so-called joint remuneration regulations, or if it is in line with equitable standard practices. All relevant elements have to be taken into consideration in each individual case when deciding about what should have been an equitable remuneration.
3. If, notwithstanding an equitable remuneration having been paid at the outset, the actual success of the work in retrospect makes the remuneration paid seem inappropriate, then the authors and performing artists can claim additional remuneration from the party they contracted with or, if the success has occurred at the level of sub-licensees, from such sub-licensees. Such appropriateness is deemed not to exist if the remuneration paid is less than 50% of what seems appropriate in light of the actual success of the work.
4. To protect authors and performing artists, the law expressly provides that these claims for equitable and best-selling remunerations cannot be waived.
5. Although there is some uncertainty under the new law for which territories these new provisions will apply, it was intended according to the Ministry of Justice to only cover uses of a work and benefits generated from such use in Germany. On the other hand the new law expressly stipulates that these new provisions will be applicable to all contracts which provide for a relevant use of a work in Germany, notwithstanding such contract being otherwise subject to a foreign jurisdiction.
6. Associations of authors and performing artists can demand from associations exploiting their works (such as publishers, television stations, producers, etc.) to enter into negotiations about joint remuneration regulations. If these negotiations do not result in setting up such regulations, a non-binding mediation procedure can be started by either party, which will result in a finding by the mediation body setting forth a proposal for joint remuneration regulations. This proposal shall become binding if not rejected by either party involved within three months.
7. Claims for statutory copyright remuneration, such as the claims for receipts under the blank cassette levy, now may not be assigned by authors and performing artists to anyone but performing rights societies.
8. The new law applies to all agreements entered into after its coming into force, which should happen on August 1, 2002 at the latest. The best-selling remuneration claims will also apply to already existing agreements to the extent the further use of a best-selling work occurs after that date. Finally, a claim for equitable remuneration can also be asserted for contracts entered into after June 1, 2000.
It now needs to be seen how these new regulations will be implemented. A number of standard clauses should now be reviewed and eventually adapted to the new law. Further changes of the Copyright Act may be expected. As a consequence of the new claim for equitable remuneration it has been discussed, for example, as to whether the prohibition for granting rights for unknown uses presently provided for under the German Copyright Act may become obsolete.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
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