Headnotes (unofficial)
Summary
The German Journalists’ Association (Deutscher Journalisten-Verband e. V.) brought an action for an injunction against two newspaper publishers belonging to the Funke Media Group. The defendants used contract offers and general terms and conditions in their dealings with freelance journalists, the remuneration provisions of which, in the plaintiff’s view, deviated from the common remuneration rules for full-time freelance journalists working for daily newspapers to the detriment of the journalists.
The following were affected:
The Federal Association of German Newspaper Publishers (BDZV) had terminated the GVR Text and the GVR Foto in February 2017 for good cause. Furthermore, the defendants, or rather the Funke Media Group, had withdrawn from the BDZV and the relevant regional association with effect from 31 December 2022.
The Higher Regional Court of Celle had dismissed the claimant’s claims under Section 36b of the German Copyright Act (UrhG). The Federal Court of Justice (BGH) dismissed the appeal against that decision. The BGH dismissed as inadmissible the cross-appeal lodged by the defendants against their partial conviction on the grounds of invalid terms and conditions.
2. Applicability of Section 36b of the German Copyright Act (UrhG)
The Federal Court of Justice (BGH) first clarifies that Section 36b of the German Copyright Act (UrhG) also applies to joint remuneration rules that were established prior to the provision coming into force on 1 March 2017.
The decisive factor is not the date on which the joint remuneration rules were drawn up, but the date on which the contract was concluded or the offer to enter into a contract was made, in which the remuneration rules were deviated from. As the disputed contractual amendments were offered from 1 January 2022, Section 36b of the German Copyright Act (UrhG) was applicable in terms of time.
Furthermore, the provision covers not only contracts that have already been concluded, but also, in the abstract, contractual offers intended for conclusion with authors. Otherwise, an author would first have to conclude a contract which they considered unlawful before an association could assert a claim for an injunction.
3. Continuing membership as a prerequisite for standing to be sued
Under Section 36b(1), first sentence, no. 2 of the UrhG, a user of a work may be held liable for a deviation from common remuneration rules if they are a member of the association of users of the work that established those remuneration rules.
The Federal Court of Justice (BGH) interprets this requirement in the context of the present. Membership must, in any event, still be in force at the time relevant to the decision. Upon withdrawal from the users’ association, standing to be sued under Section 36b(1), first sentence, no. 2 of the UrhG ceases to apply.
In the BGH’s view, the following factors in particular support this:
The purpose of Section 36b of the Copyright Act (UrhG), which is to strengthen contractual parity between authors and exploiters, does not justify an indefinite obligation on former association members that deviates from the wording of the Act.
Consequently, following their withdrawal from the BDZV regional association, the defendants could no longer be held liable under Section 36b(1), first sentence, No. 2 of the UrhG for deviations from the GVR Text.
The same applied, in effect, to the GVR Foto. The second defendant had never been a member of the users’ association involved in drawing up its list. In the case of the first defendant, the right to be sued ceased upon its withdrawal from the association.
4. Terminability of joint remuneration rules
Irrespective of the loss of standing to be sued, the claim for an injunction also failed because the GVR Text and the GVR Foto had been validly terminated in February 2017 on grounds of good cause.
The Copyright Act contains no express provision regarding the termination of joint remuneration rules. However, in the opinion of the Federal Court of Justice (BGH), it does not follow from this that joint remuneration rules, once established, must remain in force indefinitely until they are amended or repealed by mutual agreement.
Such an indefinite commitment would be particularly unreasonable if:
A mere review clause is not sufficient. Neither party is obliged to agree to new remuneration rules; furthermore, either party may object to a settlement proposal made by the conciliation body. Without the possibility of termination, remuneration rules that are permanently out of date could therefore remain in force.
In any event, the Federal Court of Justice (BGH) affirms the right to terminate joint remuneration rules for good cause. The Senate did not need to decide whether there is, in addition, a right to ordinary termination.
5. Analogous application of Section 314 of the German Civil Code (BGB)
The Federal Court of Justice leaves open the question of whether joint remuneration rules constitute contractual agreements, collective bargaining agreements or sets of rules akin to statutory provisions. Irrespective of their legal classification, § 314 BGB is in any case applicable by analogy.
Unintended regulatory gap
The Act does not regulate the termination of joint remuneration rules. Nor was the issue apparently addressed during the legislative process.
This lack of provision is unintended, as an indefinite commitment to joint remuneration rules can lead to unreasonable outcomes. This applies both to the detriment of users of the works and to the detriment of the authors, for example where remuneration rates are no longer appropriate as a result of economic changes or inflation.
Comparability with continuing obligations
Joint remuneration rules are sufficiently comparable to a continuing obligation:
This binding effect is, in any event, so similar to obligations under the law of obligations that the interpretation of Section 314 of the German Civil Code (BGB) can be applied. Section 314 BGB establishes an inherent limit on self-binding agreements based on private autonomy. In the view of the Federal Court of Justice (BGH), had the legislature carried out a comparable balancing of interests, it would also have provided for a right to terminate for good cause in the case of joint remuneration rules.
In the specific case, the good cause lay in the amendments to copyright contract law that came into force on 1 March 2017. In particular, the introduction of Sections 36b and 36c of the German Copyright Act (UrhG) conferred a significantly strengthened legally binding effect on the previously established joint remuneration rules. This change, which could not have been foreseen when the GVR Text and GVR Foto were drawn up, gave the legal institution a new character and made it unreasonable for the work users to continue to adhere to the previous regulations without change.
The terminations were therefore valid.
6. Inadmissibility of the cross-appeal
The defendants sought, by means of their cross-appeal, to challenge the partial judgment finding that clauses in their general terms and conditions were invalid.
A cross-appeal does not require that the appeal itself has been allowed in favour of the cross-appellant. However, it is a dependent legal remedy, contingent upon the main appeal. Consequently, it must not introduce any matter in dispute that has no legal or economic connection to the subject-matter of the main appeal.
The main appeal concerned exclusively the copyright-based claim for an injunction under Section 36b of the German Copyright Act (UrhG) and the question of whether the defendants were bound by the GVR Text and GVR Foto agreements.
The cross-appeal, by contrast, concerned the review of the content of various contractual clauses under the law governing general terms and conditions and the related claim for their removal.
A sufficient connection did not arise merely from the fact that all the clauses formed part of the same set of contracts. Rather, a connection in terms of content, law or economic circumstances between the respective matters in dispute is required. This was lacking because the appeals concerned different clauses, bases for claims and legal issues.
The cross-appeal was therefore dismissed as inadmissible.
