In 2023, however, a provision of the Copyright Act already introduced on 7th June 2021will be applied for the first time, which will have a significant impact on day-to-day operations. On 7th June 2023 authors (after the grace year of Section 133 (3) sentence 1 UrhG) will for the first time be able to demand information from users about the use of their copyrights since 7th June 2022J. Section 32d UrhG provides that licensees of copyrights must provide information once a year on the extent of use of the work and the income and benefits derived therefrom. The information must be provided for the first time one year after the start of the use of the work and also covers old contracts concluded before 2021.
This means that authors can demand information from their licensees about the use of the work in the previous year, i.e. since 7th June 2022, for the first time on 7th June 2023.
According to Section 32e UrhG, the obligation to provide information also applies to the other members of the license chain. The photographer can therefore, for example, demand information from his picture agency and the picture agency must then in turn receive information from the advertising agency that has purchased a picture right and the advertising agency must then in turn receive information from the company that has used the picture in advertising. If the information is not provided across the stages of use, the author himself can claim information from the various users in the chain.
In view of the considerable breadth of the term “work” under copyright law, however, the statutory provision applies not only to photographs, but also to texts, product design, logos, software, graphics and much more. According to Section 32d (2) UrhG, a block against the duty to provide information exists if the author has only made a subordinate contribution to a work or if the claim against the licensee would be disproportionate. The latter is unlikely to be the case.
At the same time, the right to information is indispensable, so that even contractual provisions cannot create a dispensation. Only common remuneration rules according to Section 36 UrhG or collective agreements could deviate from this. The only prerequisite for the right to information is the granting of the right of use in return for payment, so that the use of copyrighted works is also covered if the acquired rights of use were compensated by a one-time payment.
A company that repeatedly fails to provide the information owed can be sued by copyright associations under Section 36 UrhG (but not by the individual author) for failure to use the work. However, the individual author who does not receive information from his licensee can sue for his claim and, if necessary, also terminate the license agreement because of the refused information. The right to information is then also directed against the other users of the work in the stages of use of the work.
Companies are therefore well advised to prepare themselves for the obligation to provide information to authors or their licensors (who are not themselves authors), even for past uses since 7th June 2022. Older uses before 7th June 2022, on the other hand, are not subject to the obligation to provide information.
It is obvious that this legal regulation (depending on the industry) is likely to create a considerable administrative burden for users of copyright works. Due to the chain effect of the right to information, contractual partners may also be forced to pass on the right to information who, for their part, do not actually want to request information. Furthermore, the internal effort required for the future documentation of copyright uses will entail considerable expense. All of these obligations not only affect the media industry, but also go far beyond it due to the diversity of copyright works and will give rise to documentation obligations in practically every company.
