Publisher share of VG Wort inadmissible

The collective management society (VG) Wort includes in its distribution plans regulations under which publishers are also to be involved in the distribution of remuneration shares. The royalties are thus paid out by VG Wort on a proportional basis according to general rates to both the authors and the publishers. The dispute was now whether the publishers can be eligible for payment at all if they cannot grant the VG Wort any rights because the collective management society has already obtained these rights from the author previously.

One of the authors therefore took action against this allocation practice and obtained a judgment in his favour at first instance before the Regional Court (LG) Munich. VG Wort appealed against this judgment to the Higher Regional Court (OLG) Munich.

Decision of the court

The court (judgment of the Higher Regional Court (OLG) Munich of 17.10.2013, Az.: 6 U 2492/12) ruled against the admissibility of the publisher's participation in the revenues. The plaintiff had assigned his remuneration claims to VG Wort by means of the collective management contract of 1984. Therefore, the plaintiff could not transfer any remuneration claims to the publisher through the publishing agreement concluded later. The fact that the plaintiff had consented to the inclusion of the distribution plans in the contractual relationship did not change the inadmissibility, since VG Wort as the sole collective management society for literary works in Germany held a monopoly position and the plaintiff therefore had no choice but to accept the distribution plans.

Moreover, the general terms and conditions incorporated in the disputed collective management contract, according to which the memorandum of association and the distribution plan, even if amended, form part of the contract, would constitute an unreasonable disadvantage to the plaintiff. The participation of the publisher in the distribution of revenues as regulated in the distribution plan of VG Wort would violate the arbitrariness prohibition anchored in the Copyright Collective Management Act and the provisions regarding the prohibition of waiver of future statutory remuneration claims.

Conclusion

In the view of the Higher Regional Court (OLG) Munich, VG Wort is consequently generally not entitled to involve publishers in the revenues generated. However, VG Wort has in the meantime announced that it will appeal against this judgment to the Federal Court of Justice (BGH) in the revision expressly permitted by the Higher Regional Court.