The First Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for copyright law, had to deal with an overall agreement between the collecting society Verwertungsgesellschaft Wort and the federal states on the remuneration for posting texts on the intranet of universities, which had been determined by the Munich Higher Regional Court.
The plaintiff is VG Wort; it exercises the copyright powers of authors of words. It demands that the federal states - sued are all the federal states in their capacity as sponsors of various higher education institutions - conclude a "general agreement on the settlement of claims under Section 52a UrhG for making linguistic works publicly available for the purposes of teaching and research at universities".
Pursuant to Section 52a (1) UrhG, it is permissible to make small parts of a work, small works and individual contributions from newspapers or periodicals available to the public, e.g. for illustration purposes in teaching at schools and universities (Section 52a (1) No. 1 UrhG) or to make parts of a work, small works and individual contributions from newspapers or periodicals available exclusively to a specifically delimited group of persons for their own scientific research (Section 52a (1) No. 2 UrhG), i.e. to place them on the intranet of the respective institution for the authorised users. A further prerequisite is that this use is required for the respective purpose and is justified for the pursuit of non-commercial purposes. Pursuant to Section 52a (4) sentence 1 UrhG, an appropriate remuneration must be paid for this use of the copyright, whereby the claim pursuant to Section 52a (4) sentence 2 UrhG can only be asserted by a collecting society.
The parties dispute above all how the terms "small parts of a work" and "small-scale works" are to be defined for determining the scope of use permissible under Section 52a (1) UrhG. 1 UrhG, the terms "small parts of a work", "parts of a work" and "works of small extent" are to be defined, whether making the work available to the public is not "required" and thus impermissible if the right holder offers the work or the part of the work in digital form (as an "e-book") for use on the network of the institution on reasonable terms, what remuneration is "reasonable" and whether the individual uses are to be recorded and accounted for (so the plaintiff's proposal) or lump-sum remuneration is owed on the basis of representative surveys (so the defendant's proposal).
The plaintiff applied to the Munich Higher Regional Court for the judicial determination of an overall agreement. Pursuant to Section 16 (4) sentence 3 UrhWG, the Higher Regional Court must determine an overall agreement at its "reasonable discretion".
The overall agreement determined by the Upper District Court largely follows the plaintiff's proposal with regard to the determination of the permissible scope of use, the priority of reasonable offers by the rights owners and the coverage of individual uses and provides for a degressive remuneration per work or part of a work as reasonable remuneration in accordance with the defendant's request and staggered according to group sizes.
Both parties have filed an appeal against this with the Federal Supreme Court, which was allowed by the Higher Regional Court.
The Federal Court of Justice did not approve the overall agreement established by the Upper District Court in all points and therefore referred the case back to the Upper District Court for a new hearing and decision. It was not objectionable that the overall agreement provided for priority to be given to reasonable offers by the rights owners and for individual uses to be recorded and invoiced. However, the Higher Regional Court had not convincingly explained why, in determining the permissible scope of use, it had partly deviated from the provisions made by the parties in the "General Agreement on the Remuneration of Claims under Section 52a UrhG for Making Works Publicly Available for the Purposes of Teaching in Schools", which also concerned language works; according to this agreement, "small parts of a work" are to be understood as a maximum of 12% of a work, "parts of a work" are to be understood as a maximum of 25% of a work (but not more than 100 pages) and "works of small extent" are to be understood as printed works with a maximum of 25 pages.
It also did not appear appropriate to assess the remuneration for making linguistic works available to the public at universities - in accordance with the "Collective Agreement on the Remuneration of Claims under Section 52a UrhG for Making Works Available to the Public with the Exception of Linguistic Works at Universities" concluded by the defendant with other collecting societies - according to the work or part of the work and not according to the number of pages of the printed work, according to group sizes and not according to the number of participants in the event, and degressively and not linearly. However, it was not objectionable that the Higher Regional Court had based its assessment of the remuneration on the so-called copying remuneration, which was payable for reproductions under Section 54a (2) UrhG old (now Section 54c UrhG) on the basis of a framework agreement of 8 March 2007 concluded between the parties and amounted to € 0.008 (0.8 ct) per page.
Judgment of the Federal Court of Justice (BGH) of March 20, 2013 - I ZR 84/11 - General agreement on university intranet
Previous instance:
OLG Munich, judgment of March 24, 2011 - 6 WG 12/09, ZUM-RD 2008, 360
Source: Press release of the BGH
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: m.ullrich@goldberg.de
