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Germany

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Act to Strengthen the Contractual Position of Authors and Performing Artists

Law
to Strengthen the Contractual Position of Authors and Performing Artists

of 22 March 2002

The Bundestag passed the following law:

Article 1
Amendment of Copyright Law

The Copyright Law of 9 September 1965 (Federal Law Gazette I p. 1273), as last amended by ,'\rtic!c 16 of the Law of 13 December 2001 (Federal Law Gazette I p.3656), shall be amended as follows:

"It shall also serve to ensure equitable remuneration for the exploitation of the work."

2. Section 29 shall be worded as follows:

"Section 29
Contractual Agreements on Copyright

(1) Copyright is not transferable, unless it is transferred in execution of a testamentary disposition or to
co-heirs as part of the partition of an estate.
(2)
The granting of exploitation rights (Section 31), contractual authorisations and agreements on
exploitation rights as well as contracts on moral rights of authors as regulated under Section 39 are
permitted."

3. Section 31 shall be worded as follows:
a) Subsections 1 to 3 shall be worded as follows:
"( 1) The author may grant a right to another to use the work in a particul ar manner or in any manner
(exploitation right). An exploitation rightmay be granted as a non-exclusive right or as an exclusive

(3) An exclusive exploitation right shall entitle the right holder to use the work in the manner permitted to him, to the exclusion of all other persons, and to grant non-exclusive expl oitation rights. It may be agreed that utilisation by the author is reserved. Section 35 remains unaffected." b) Subsection 5 shall be worded as follows: "(5) If the types of use have not been specifically designated when an exploitation right was granted, the types of use to whictl the right extends shall be determined in accordance with the purpose envisaged by both parties to the contract. A corr-esponding rule shall apply to the questions of whether an exploitation right has in fact been granted, whether it shall be a non-exclusive or an exclusive

IP INi lID EU lei 1! Add.5 Page 3

exploitation right, how far the right to use and the right to forbid extend, and to what limitations the exploitation right shall be subject."

4. Sections 32 and 33 shall be replaced by the following provisions:

"Section 32
Equitable Remuneration

(1) The author shall have a right to the contractually agreed remuneration for the granting of exploitation rights and permission for exploitation of the work. If the amount of the remuneration has not been determined, equitable remuneration shall be deemed to have been agreed. If the agreed

possibility of exploitation granted, in particular the duration and time of exploitation, and considering all circumstances.

(3) An agreement that deviates from subsections 1 and 2 to the detriment of the author cannot be invoked by the other party to the agreement. The provisions stipulated in the first sentence shall apply

even if they are circumvented by other arrangements. The author may, however, grant a non-exclusive exploitation right to anyone free of charge.

(4) The author shall have no right pursuant to subsection 1 third sentence to the extent that the remuneration for exploitation of his works has been determined in a collective bargaining agreement.

Section 32a
Further Participation by the Author

contractual relationship within the licensing chain. The other party shall then not be liable.

(3)
The rights under subsections 1 and 2 may not be waived in advance. An expected benefit shall not be subject to compulsory execution; any disposition regarding the expected benefit shall be ineffective.
(4)
The author shall not have a right pursuant to subsection 1 if the remuneration has been determined in accordan ce with a joint remuneration rule (Section 36) or-in a collective bargaining agreement and

explicitly provides for a further equitable participa tion in cases under subsection 1.

Section 32b

Compulsory Application The application of Sections 32 and 32a shall be compulsory

1. if German law would be applicable to the exploitation agreement in the absenc of a choice of law

or

2. to the extent that the agreement covers significant acts of exploitation within the territorial scope of this Law.

Section 33

Continuing Effect of Non-Exclusive Exploitation Rights

Exclusive and non-exclusive exploitation rights shall remain effective with respect to exploitation rights

granted later. The same rule shall apply, if the holder of the right who has granted the exploitation right changes or if he waives his right."

5. In Section 34, subsections 3 to 5 shall be worded as follows: "(3) An exploitation rjght may be transferred without the author's consent if the transfer is comprised in the sale of the w.hole exploitation right if exercise of the exploitation right by the t:ansferee may not be reasonably demanded of the author. The second sentence shall also apply when the shareholder relations with respect to the enterprise of the holder of the exploitation rights are substantially changed.

(4) The transferee shall be jOintly and severally liable for the discharge of the transferor's obligations

under his agreement with the author, if the author has not expressly consented to the transfer of the
exploitation right in the individual case.
The author cannot waive the right of revocation and the liability of the transferee in advance.
Otherwise, the holder of the explOitation right and the author may agree on different terms."

6. Section 35 shall be amended as follows:
a) In the title, the words "non-exclusive" shall be replaced with the word "further".

first sentence, the words "non-exclusive" shall be replaced with the word "further". c) In subsection 2, the reference " (4 )" shall be repla ced with "(5) second sentence".

7. Section 36 shall be worded as foll ows :

rP/N/IlDEU/c/1!Add.5 Page 5

Section 36
Joint Remuneration Rules

(1)
In order to determine whether remuneration is equitable pursuant to Section 32, authors' associations together with associations of users of works or individual users of works shall establish joint remuneration rules. Joint remuneration rules shall take account of the circumstances of the respective area.of regulation, especially the structure and size of the users. Regulations contained in collective bargaining agreements shall take precedence over joint remuneration rules.
(2)
Associations as referred to under subsection 1 shall be representative, independent and empowered to establish joint remuneration rules.
(3) If the parties have so agreed, proceedings for the establishment of joint remuneration rules sha!! be

conducted before the Arbitration Board (Section 36a). Proceedings shall be conducted upon written

request of one of the parties, if

1 . the other party does not commence negotiations on joint remuneration rules within three months of the written request of one of the parties to initiate negotiations,

  1. negotiations on joint remuneration rules do not result in an outcome one year after the written request to initiate such negotiations, or
  2. one of the parties has declared that the negotiations have irretrievably failed.

(4) The Arbitration Board shall submit to the parties a settlement proposal giving reasons and containing the contents of the joint remuneration rules. The proposal shall be deemed to have been accepted if the Arbitration Board does not receive any written objection thereto within three months of

the receipt of such proposal.

8. The foilowing Section 36a shall be inserted after Section 36:

"Section 36a Arbitration Board

(1) In order to establish joint remuneration rules, authors' associations together with associations of users of works or individual users of works shall set up an Arbitration Board if the parties have agreed

respective parties, and an impartial chairman, the appointment of whom both parties should agree upon.

(3)
If it is not possible for agreement to be reached on who is to be appointed as chairman, the Higher Regional Court competent pursuant to section 1062 of the Code of Civil Procedure shall appoint the chairman. The Higher Regional Court shall also decide failing agreement as to the number of assessors. Sections 1063 and 1065 of the Code of Civil Procedure shall apply mutatis mutandis to the proceedings before the Higher Regional Court.
(4)
A request for arbitration proceedings in accordance with Section 36(3) second sentence must contain a proposal for the establishment of joint remuneration rules.
(5)
The Arbitration Board shall decide by majority vote following an oral consultation.The decision shall initially be taken by the assessors: if a majority vote cannot be obtained, the chairman shel!, foJ!owing

further consultation, participate in a renewed vote. If one of the parties does not appoint any members or if the members appointed by one of the parties do not take part in the session in spite of a timely invitation to do so, the chairman and the members who have attended shall decide on their own in accordance with the first and second sentences. The decision of the Arbitration Board shall be set forth in writing, signed by the chairman and delivered to each party.

(6) Unless the parties agree otherwise, the costs of the arbitration proceedings shall be borne by the

agreement.

(8) The Federal Ministry of Justice shall have the power to lay down by ordinance, without consent of the Bundesrat, further details of the procedure before the Arbitration Board, as well as further provisions on the costs of proceedings and the payment of members of the Arbitration Board."

  1. (deleted)
  2. (deleted)
  3. The following Section 63a shall be inserted after Section 63. "Section 63a

Statutory Remune ration Rights Statutory remuneration rights as provided in Chapter VI may not be waived by the author in advance. They may be assigned in a dvance only to a collecting society."

12. (deleted)

13. Section 71 subsection 1 third sentence shall be worded as follows:

separately exploited, they may decide before the performance to authorise one person to pursue their claims under Sections 32 and 32a. Section 80 remains unaffected."

IP/N/1/DEU/C/I/Add.5 Page 7

  1. (deleted)
  2. Section 88 shall be amended as follows: a) Subsection 1 shall be amended as follows: "(1) If an author permits another person to make a cinematographic adaptation of his work, he shall be deemed, in case of doubt, to have granted the exclusive exploitation right to use the work in its original form or as an adaptation or transformation for the purposes of producing a cinematographic work and to utilise the cinematographic work as also translations and other cinematographic adaptations of it in

any known manner." b) Subsection 3 is repealed.

  1. The following subsection 4 shall be added to Section 89:
    "(4) Concerning the rights of cinematographic exploitation in photographs and photographic works
    produced in connection with the creation of a cinematographic work, subsections 1 and 2 shall apply
    mutatis mutandis."
  2. Section 90 shall be worded as follows:

"Section 90 Limitation of Rights

first sentence shall not apply to the right of cinematographic adaptation until the commencement of the shooting ()f the film."

  1. Section 91 is repealed.
  2. (deleted)
  3. (deleted)
  4. In Section 95, the reference "Section 91" shall be deleted and the reference "89(4)" shall be inserted before the reference "gO".

23. Section 132 shall be amended 2S follows·

a) In subsection 1 first and second sentences, and in subsection 2, in each case, the words "the entry
into force of this Law" shall be replaced with tIle reference "January 1, 1966".
b) The following subsections shall be added:
"(3) Subject to the second and third sentences, the provisions of this Law shall apply further in the

version of the Law in force on March 28,2002 to contracts, or other situations, which were either concluded or came into being, respectively, prior to July 1, 2002. Section 32a shall apply to situations

. which came into being after March 28, 2002. Section 32 shElli also apply to contracts which were concluded between June 1,2001 and March 28, 2002, where the right granted or the permission has been used after March 28, 2002.

(4) Subsection 3 shall apply to performers mutatfs mutandis."

Article 2
Amendment of the Publishing Law Act

Article 28 of the Publ ishing Law Actin the revised version published in the Federal Law Gazette [BGBI]

Part III, classification number 441-1, last amende d by Article 5 (26) of the Act dated 26 November

2001 (Federal Law Gazette I, p. 3138) shall be deleted.

Article 3 Entry into Force

This Act shall enter into force on the first day of the fourth month after promulgation.

The constitutional rights of the Federal Council have been heeded.
The above Act is hereby executed and promulgated in the Federal Law Gazette.

Berlin, 22 March 2002

Federal President Johannes Rau

Federal Chancellor Gerhard $chroder

Federal Minister of Justice Daubler-Gmelin