Grandchildren right

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Subsidiary and grandchildren rights in a copyright license chain

A grandchildren's right (also: grandchildren's right of use ) is a right of use , especially in copyright law , that was not granted by the original right holder himself, but in turn by the holder of a right of use (“subsidiary right”).

classification

(The following presentation is based on the legal situation in Germany, but can also be applied to other legal systems.) The original copyright holder is the author. The latter cannot transfer his copyright to a third party ( Section 29 (2) of the Copyright Act [UrhG]). However, he can grant a third party a right of use ( § 31 UrhG). A right of use is a right to (third-party) copyright based on a legal transaction ( contract ); it is sometimes also referred to as a license, based on the language used in industrial property rights . The right of use granted by the original right holder is also referred to as the first-level right of use or "subsidiary right" because it is derived directly from copyright law (as "parent right"). Under certain circumstances, the holder of such a first-level right of use can in turn grant a third party a right of use. This is then referred to analogously as second-level right of use or “grandchildren right”. Sometimes there is also talk of a “sub-license” (as opposed to the “main license” located at the first level).

Consequences of the loss of subsidiary law (Germany)

The granting of such multi-level usage rights creates so-called license chains (also: rights chains). A particular problem in this constellation is the influence of disruptions in the area of ​​a subsidiary right on the existence of usage rights of downstream levels. The constellation that the author makes use of his right of recall due to non-exercise may serve as an example. According to Section 41 (1) of the Copyright Act, an author can revoke an exclusive right of use granted by him if the owner does not exercise the right or does so insufficiently, thereby seriously violating the author's legitimate interests. The legal consequence of the effective declaration of such a recall is the expiry of the right of use. This raises the question of what effects the recall of subsidiary rights due to non-exercise will have on the continued existence of grandchildren rights that were granted prior to the recall.

There is great disagreement on this issue in copyright literature. The overwhelming number of authors are of the opinion that with the loss of the subsidiary rights, the grandchildren's rights also expire. On the other hand, it is argued, usually with reference to the direct consequences of the abstraction principle , that a loss of subsidiary rights does not affect grandchildren's rights. Another view seeks to differentiate between the reason for the expiry of the subsidiary right, whereby a distinction is usually made according to whether the subsidiary right was lost due to ordinary or extraordinary reasons (recall, termination, etc.).

In 2009, the Federal Court of Justice (BGH) ruled in the Reifen Progressiv case - against the prevailing opinion in the literature - that derived grandchildren rights do not expire if the subsidiary rights are recalled due to non-exercise. To this end, he justified the fact that the grandchildren's rights are based on the agreement with the owner of the subsidiary rights (and not with the author himself) and that the expiry of the first binding transaction does not in principle result in the expiry of this further agreement; even simple rights of use have a material character , so that the grandchildren's rights are independent of their continued existence after the subsidiary rights have been split off. Finally, in the context of a weighing up of interests, the design of the right of recall due to non-exercise speaks against the expiry of simple grandchildren's rights: In the case of grandchildren's rights of an exclusive nature, the author can in any case declare the recall directly to the owner of the grandchildren's rights. In the case of simple grandchildren's rights of use, this is not possible, but what matters is that the author's rights are not excessively impaired because of their simple nature and that the owner of the subsidiary rights originally consented to the granting of grandchildren's rights himself, so that he subsequently also accepted it must if the exclusive right of use is encumbered with a simple right of use in the event of a relapse.

The extent to which this jurisprudence can also be transferred to other cases where the subsidiary law ceases to exist is controversial in the literature. In the meantime, however, the BGH has expanded it. In the M2Trade decision, it decided for cases in which the main licensee has granted the sub-licensee a simple right of use in return for ongoing payment of license fees, that the expiry of the subsidiary right does not lead to the expiration of the grandchildren's right even if the subsidiary right is not due to a recall due to non-exercise, but for other reasons not in the sphere of the sub-licensee expires (in the event of a dispute: termination of the main license agreement due to default in payment).

literature

  • Stephan Carduck: The legal status of the sub-licensee after the main license has expired: Effects of the case law of the BGH (M2Trade / TakeFive) . Kovač, Hamburg 2016, ISBN 978-3-8300-8992-6 .
  • Louis Pahlow: Of Mothers, Daughters and Grandchildren: On the Legal Character and Effect of the Copyright Recall . In: Commercial legal protection and copyright . tape 111 , 2010, p. 112-119 .
  • Jennifer Pentecost: The fate of grandchildren's rights in the absence or after the loss of daughter rights . Peter Lang, Frankfurt am Main 2014, ISBN 978-3-653-04784-4 .
  • Gerald Spindler: Licensing according to M2Trade, Take five and Reifen Progressiv: An analysis with a special focus on corporate and conflict of laws . In: Computer and Law . No. 9 , 2014, p. 557-567 , doi : 10.9785 / cr-2014-0903 .
  • Dominik Sebastian Stier: The interruption of copyright license chains . V&R unipress, Göttingen 2014, ISBN 978-3-8471-0195-6 .

Remarks

  1. ↑ See e.g. Berger in Berger / Wündisch, Copyright Contract Law, 2nd edition 2015, § 1 Rn. 184.
  2. ↑ See Berger in Berger / Wündisch, Copyright Contract Law, 2nd edition 2015, § 1 Rn. 40. The designation of copyright usage rights as “licenses” is the subject of inconsistent linguistic usage. For more information, see Mary-Rose McGuire, The License. A classification in the system context of the BGB and civil procedure law , Mohr Siebeck, Tübingen 2012, ISBN 978-3-16-150425-9 , pp. 59-67, as well as Louis Pahlow, license and license agreement in the law of intellectual property , Mohr Siebeck, Tübingen 2006, ISBN 978-3-16-148937-2 , pp. 188-191.
  3. ↑ Cf. Loewenheim / JB Nordemann in Loewenheim, Handbook Copyright, 2nd edition 2010, § 25 Rn. 9; BGH, judgment of March 26, 2009, I ZR 153/06 = BGHZ 180, 344 = GRUR 2009, 946 - Reifen Progressiv, Rn. 9.
  4. ^ For example, the language used in BGH, judgment of July 19, 2012, I ZR 70/10 = BGHZ 194, 136 = NJW 2012, 3301 - M2Trade. Synonymous, for example, in Stier, The Interruption of Copyright Licensing Chains , 2014, op. Cit., P. 19 f.
  5. ↑ See Berger in Berger / Wündisch, Copyright Contract Law, 2nd edition 2015, § 1 Rn. 184. Closer to the nature of the resulting license chains also Pentecost, The fate of grandchildren's rights in the absence or after the elimination of daughter rights, 2014, op.
  6. ↑ See Schricker / Peukert in Schricker / Loewenheim, Copyright, 4th edition 2010, § 41 Rn. 24 with further evidence.
  7. ^ For example Schricker / Peukert in Schricker / Loewenheim, Copyright, 4th edition 2010, § 41 Rn. 24; Stier, The Interruption of Copyright Licensing Chains , 2014, op.cit., P. 127 ff. Detailed information on the state of opinion in the literature: Pentecost, The fate of grandchildren rights in the absence or after elimination of the daughter right, 2014, op.cit., P. 65 –71, as well as Wandtke / Grunert in Wandtke / Bullinger, Copyright Act, 4th edition 2014, § 35 Rn. 7 ff.
  8. ↑ See Pentecost, The fate of grandchildren rights in the absence or after the elimination of daughter rights, 2014, op. Cit., P. 69 f .; Wandtke / Grunert in Wandtke / Bullinger, Copyright Act, 4th edition 2014, § 35 Rn. 8, each with corresponding evidence.
  9. ↑ See BGH, judgment of March 26, 2009, I ZR 153/06 = BGHZ 180, 344 = GRUR 2009, 946 - Reifen Progressiv.
  10. ↑ See BGH, judgment of March 26, 2009, I ZR 153/06 = BGHZ 180, 344 = GRUR 2009, 946 - Reifen Progressiv, Rn. 19 f.
  11. ↑ See BGH, judgment of March 26, 2009, I ZR 153/06 = BGHZ 180, 344 = GRUR 2009, 946 - Reifen Progressiv, Rn. 22nd
  12. ↑ See BGH, judgment of March 26, 2009, I ZR 153/06 = BGHZ 180, 344 = GRUR 2009, 946 - Reifen Progressiv, Rn. 22-24.
  13. ↑ See Wandtke / Grunert in Wandtke / Bullinger, Copyright Law, 4th edition 2014, § 35 marginal no. 8 f., With corresponding evidence.
  14. ↑ See BGH, judgment of July 19, 2012, I ZR 70/10 = BGHZ 194, 136 = NJW 2012, 3301 - M2Trade, Rn. 23 ff.