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  • Writer's pictureMarie-Avril Roux Steinkühler

Private copying in Germany

Updated: Jun 29, 2021

German publishers, private copying and remuneration to authors. A look back at the publishing scene in Germany.

The case stems from the ECJ's judgment of 12 November 2015 2015 (C‑572/13)[1] in Hewlett Packard Belgium v Reprobel, which declared incompatible with the DADVSI Directive 2001/29/EC a Belgian national rule providing for a proportional remunerative payment for reproduction to publishers. Publishers were not original copyright right holders within the meaning of this text and this remunerations had the effect of depriving authors of their share of fair compensation.

In the following, the Federal Court of Justice ruled in a judgment of 21 April 2016 (BGH I ZR 198/13, Verlegeranteil) that VG Wort is not entitled to pay out a lump sum amounting in principle to half of its income from the reproduction to publishers.[2]

According to the Federal Supreme Court, a copyright collecting society must distribute the remuneration from the administration of the rights assigned to it exclusively to the owners of these rights and claims. Only authors, therefore, are entitled to remuneration for private copying, not publishers, unless the authors have expressly transferred these rights to them.

In fact, the wording of the Copyright Law at the time provided that authors could not completely renounce or transfer their rights, except to a copyright collecting society.

In this context, the Berlin Court of Appeal decided on 14 November 2016 [3] that the GEMA would not have had to pay the publishers any remuneration share for private copying since 2010, as the authors had transferred their rights to the GEMA and the publishers were not themselves owners of copyrights or related rights.

The court explicitly pointed out that the solution would have been different if the authors had transferred their rights to a copyright remuneration which GEMA had to pay (at least in partially) to the publishers. However, since such agreements could not be identified, no compensation is due.

The Court of Appeal therefore ordered the GEMA to compensate the plaintiffs for the compensation paid.

On 24 December 2016 (!) the German law was revised, § 27a) of the Collecting Societies Act now provides: “After the release of a published work or upon its registration with the collecting society, the author may declare consent to the collecting society for the publisher to receive a share of the revenue from the statutory remuneration rights referred to in section 63a, first sentence, of the Copyright Act.”

As a consequence of this rule, which allows the sharing of rights with the consent of the author, two measures were adopted by GEMA:

- In the future, (see and, the GEMA has set up a reverse payment system since 1 February 2017, which enables the publisher to prove the author's consent to the sharing of rights via the Electronic Confirmation Process (ECP) after the declaration.

- For the past, the same electronic confirmation procedure (ECP) allowed publishers to prove authors' consent to retain compensation paid to them during the reporting period, i.e. between 1 July 2012 and 24 December 2016[4]. Publishers had a deadline between 1 February 2017 and 13 January 2018 to submit the information to GEMA.

The compensation plan of the GEMA has also been amended, § 26 (3) now provides that: “In cases where royalty revenue received on the basis of statutory remuneration rights is to be distributed to published works, the shares allocated to the publisher according to Chapter 9 of the Special Provisions shall be paid out to the publisher only if the author of the work concerned approved of the publisher receiving a share in royalty distributions for it in respect of statutory remuneration rights pursuant to Sec. 27a of the German Collecting Societies Act [Verwertungsgesellschaftengesetz – VGG] and GEMA has been informed of this approval in compliance with the time limits set forth in § 36 para. 2 and § 41 para. 3. If the author does not approve of the publisher receiving a share in royalty distributions in respect of statutory remuneration rights, those shares in the royalty revenue received on the basis of statutory remuneration rights which have been allocated to the publisher according to Chapter 9 of the Special Provisions shall be paid out to the author.” [5]

Similar regulations can now also be found in the rules of other collecting societies.


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