On 13 February 2024, the Regional Court of Hanover issued a remarkable judgement (not final) on the enforceability and effects of joint remuneration rules (GVR), case no. 18 O 193/22. The claim asserted was a claim for injunctive relief by an association against a work user under Section 36b UrhG (German Copyright Act) for the omission of purchase and fee conditions (GTC) of a work user. The work user had previously left the association of work users. Nevertheless, a prohibition under Section 36b UrhG was issued. The essential statements are:
The GVRs do not violate the prohibition of cartels under European law (Art. 101 para. 1 AUEV), following OLG Nuremberg, final judgement of 29 December 2020 – 3 U 761/20.<br>
GVRs cannot be terminated in the absence of a statutory provision. Section 77 para. 5 BetrVG (German Works Constitution Act) also does not allow for termination.<br>
They can also not be terminated for cause in accordance with Section 314 BGB (German Civil Code) due to the change in the legal situation in the copyright law amendment of 1 March 2017.<br>
The withdrawal of a user from the work users’ association does not change the fact that he was a member of the GVR when it was established and cannot invoke a provision that deviates from the GVR to the detriment of the author (following Dreier/Schulze/Schulze, 7th ed. 2022, UrhG § 36b para. 5).<br>
A detrimental deviation from the GVR is not permitted and can be prohibited by the courts. If individual remunerations are provided for in the GVR, a flat-rate remuneration provision is incompatible with the GVR in every respect and is therefore unlawful.<br>
It is the task of the work users, if they are bound by the GVR, to appropriately reflect the differentiated fee regulations therein in their GTC.<br>
Whether such general terms and conditions are also void pursuant to Section 138 BGB could be left open.
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