The First Civil Senate of the Federal Court of Justice, which is responsible among other things for copyright law, has ruled that the fee conditions on which the Axel Springer publishing house bases its contracts with freelance journalists are partly invalid.
The plaintiff is the German Journalists' Association, which represents the interests of employed and freelance journalists. Since January 2007, the defendant Axel Springer Verlag has based the contracts it concludes with freelance journalists for the supply of text and picture contributions on its "Fee Regulations Newspapers" and "Fee Regulations Magazines".
The plaintiff considers a large number of the clauses contained in the fee regulations to be invalid. He therefore sued the defendant for injunctive relief against the use of these fee regulations. The Berlin Regional Court upheld the claim with regard to some of the clauses. Both the plaintiff and the defendant were partially successful in their appeals to the Kammergericht.
In response to the plaintiff's appeal, the Federal Supreme Court (BGH) has now declared some further clauses, which the court of appeal had considered unobjectionable, to be invalid. With regard to other clauses, however, the appeal was unsuccessful. The focus is on the provision by which the defendant publishing house grants itself comprehensive copyright rights of use to the articles produced by the freelance journalists ("Unless ... agreed otherwise, the publishing house shall have the right to use the articles in Germany and abroad in tangible and intangible form, both digitally and analogously, without any restrictions as to time, place or content ..."). The BGH found this provision to be effective. In contrast to the Kammergericht, however, the Federal Supreme Court objected to the remuneration provision, which stipulates, among other things, that the agreed fee includes an appropriate share for the granting of the comprehensive rights of use.
The comprehensive granting of rights is not precluded in particular by the protective concept of Section 31 (5) UrhG, according to which the author is to participate as far as possible in the economic fruits of the exploitation of his work. According to the Federal Court of Justice, this provision cannot be considered as a criterion for reviewing the content of general terms and conditions under Section 307 (2) no. 1 of the German Civil Code. On the one hand, it is a rule of interpretation that leaves the content and scope of the rights to be granted fundamentally to the disposition of the contracting parties. On the other hand, the clauses are regulations that directly determine the scope of the main contractual obligation. They belong to the core area of private autonomy in the drafting of contracts and are regularly exempt from the control of content pursuant to §§ 307 et seq. BGB. This has not been changed by the introduction of Section 11 sentence 2 UrhG, according to which copyright also serves to secure an appropriate remuneration for the use of the work.
The Federal Court of Justice therefore only justified the invalidity of the remuneration provision on the basis of the transparency requirement. According to this, an unreasonable disadvantage of a provision in general terms and conditions can result from the fact that the provision is not clear and comprehensible; the user of such terms and conditions is rather required to present the rights and obligations of his contractual partner in a clear, simple and precise manner. According to the fee regulations of the defendant publishing house, however, it is completely unclear whether the journalist is to receive separate remuneration for further uses or not. These regulations contain a provision according to which a differentiation is to be made in this respect: Individual uses listed in one clause are to be compensated "in any case". According to another clause, which the Court of Appeal has already declared legally invalid, the question of whether separate remuneration is owed for uses going beyond this is to be determined by what is agreed between the contracting parties. According to this provision, it ultimately remains open whether and for which further uses the publisher has to pay a separate remuneration.
However, according to the Federal Court of Justice, this does not mean that undifferentiated remuneration rules are legally unobjectionable, where the agreed fee covers all further uses. This is because such a flat fee will often not prove to be appropriate and will therefore have to lead to a subsequent adjustment of the contract pursuant to Section 32 (1) sentence 3 UrhG.
Judgment of the Federal Court of Justice (BGH) of May 31, 2012 - I ZR 73/10 - Fee conditions for freelance journalists
Previous instances:
Berlin Regional Court - Judgment of December 9, 2008 - 16 O 8/08
KG Berlin - Judgment of March 26, 2010 - 5 U 66/09 (ZUM 2010,799 = AfP 2010, 388)
Source: Press release of the BGH
Goldberg Attorneys at Law
Michael Ullrich, LL. M. (Information Law)
Attorney at Law and
specialist attorney for information technology law
E-mail: Info@goldberg.de
