Verifiability of reasonable remuneration in conformity with the constitution

The Federal Constitutional Court had to decide in the context of two constitutional complaints whether § 32 UrhG, created by the German legislature, which grants authors a right to judicial review of the reasonableness of remuneration agreed by contract, is compatible with the Basic Law.

Since 2002, every author can have a contract concluded on the use of his work judicially reviewed for the reasonableness of the agreed remuneration. If the author has received only inappropriately low remuneration for the grant of rights of use, he can demand from his contracting party consent to the modification of his contract and make corresponding claims for additional payment.

In the present cases, two translators demanded an adjustment of their contracts from their publisher, as in their view the author's share due to them was set too low. In both cases, the Federal Court of Justice (BGH) sided with the translators and ordered the publisher to increase the agreed fees, provide information and pay several thousand euros in back payments.

Against this decision, the publisher filed a constitutional complaint before the Federal Constitutional Court (BVerfG), as it takes the view that the judgments of the Federal Court of Justice (BGH) and the regulation of § 32 UrhG violate the contractual freedom and private autonomy of the publisher protected by freedom of profession. In particular, the provision permits subsequent intervention in existing translator contracts.

Decision of the court

The Federal Constitutional Court (BVerfG) decided by order of 23.10.2013, Az. 1 BvR 1842/11 and 1 BvR 1843/11 that the constitutional complaints are unfounded, since neither the copyright-regulated provision on reasonable remuneration nor the challenged decisions of the Federal Court of Justice (BGH) violate the publisher's fundamental rights.

By creating § 32 UrhG, the legislature lawfully restricted the fundamental right to freedom of profession pursuant to Art. 12 GG. The legislature may impose such restrictions for the purpose of redressing social or economic imbalances. Such imbalances are not unusual in the legal relationship between the author and the acquirer of copyright rights of use.

The Federal Court of Justice (BGH) did not violate the publisher's fundamental rights in the present cases through erroneous application of the law. This applies in particular to the determination of the author's share of a translator in the proceeds of the foreign author.

Conclusion

Following the decision of the Federal Constitutional Court (BVerfG), the constitutional conformity of the copyright provision on the verifiability of reasonable remuneration is established. Every author can, despite a valid contract in which he has agreed with his contracting party on a specific remuneration, have the amount of his work's remuneration reviewed by the court. This offers particular prospects of success when – as in the cases dealt with here – the work created could be marketed very successfully by the acquirer.