License analogy
The license analogy is a form of compensation that is used in intellectual property law , in particular in copyright law . In the case of improper or unauthorized use of a right, the rights holder has the choice of how he wants to calculate his claim for damage.
If he chooses the license analogy, the claim for damages "can also be calculated on the basis of the amount that the infringer would have had to pay as reasonable remuneration if he had obtained permission to use the violated right": Section 97 (2) sentence 3 UrhG . Under Section 101a UrhG, the rights holder has a right to information from the infringer about the scope of the improper use in order to calculate the fictitious license fee on this basis. Only then will the fee be claimed as part of a step action .
According to the Federal Court of Justice, it is “purely objective to focus on what a sensible licensor would have demanded and granted a sensible licensee if both had known the situation at the time of the decision”. It is therefore inadmissible to use the contractually offered price if this has not established itself as a remuneration customary in the industry.
The license analogy “is based on the consideration that the infringer should in principle not stand differently from a contractual licensee who would have paid a license fee. In view of the normative objective of this damage calculation method, it is irrelevant whether, if the infringer had acted correctly, a license would actually have been granted in the specific case; The only decisive factor is that the injured party would not have permitted the use without consideration. The calculation of damage on the basis of an appropriate license fee is permissible wherever the transfer of exclusive rights for use by third parties against payment is legally possible and customary. In substance, this calculation is a claim corresponding to the enrichment claim according to § 812 Paragraph 1 Clause 1 2nd alternative, § 818 Paragraph 2 BGB ”.
The license analogy is also expressly provided as a form of remuneration in employee invention law.
Individual evidence
- ^ BGH, judgment of March 22, 1990, Az. I ZR 59/88, NJW-RR 1990, 1377; GRUR 1990, 1008, 1009; License analogy.
- ^ Institute for Copyright and Media Law: Customary fee rate not identical to the contractually offered license , August 4, 2020
- ^ BGH, judgment of June 23, 2005 , Az. I ZR 263/02, Catwalk.
