Arbitration board according to the collecting societies law

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The arbitration board under the Collecting Societies Act is an institution located at the German Patent and Trademark Office (DPMA) in Munich , which mediates content protected by copyright or ancillary copyright law in particular in disputes between collecting societies and users. In addition, the arbitration board is responsible for mediating between broadcasters and cable network operators in certain cases.

Pending implementation of the development company law (VGG) on June 1, 2016, the arbitration board found its legal basis in the Copyright Administration Law of 9 September 1965 (WahrnG) and the copyright arbitration ordinance issued on the basis of (UrhSchiedsV) of 20 December 1985th

position

Collecting societies serve to effectively exercise claims from copyright and related rights. To this end, the entitled parties first grant the collecting societies rights of use, rights of consent and claims for remuneration on a fiduciary basis ; The collecting societies then evaluate these for the account of the bringing in rights holders for their collective benefit. There are currently 13 such collecting societies in Germany that deal with different subject matter and rights (as of August 2017).

The collecting societies cannot do anything with the rights granted to them. In their internal structure, they are supported by their members (in the case of associations , for example GEMA ) or shareholders (in the case of GmbHs , for example the GVL ). Members and authorized contributors are always to be appropriately and effectively involved in the decisions of the collecting society. The central decisions of a collecting society include the tariff plans - which must be drawn up - in which it is determined which remuneration should be incurred for certain types of use. In addition, collecting societies are also subject to important external constraints. In particular, they are subject to a compulsory conclusion, which generally obliges them to grant rights “on reasonable terms”. With user associations, overall contracts must be concluded “on reasonable terms”.

Against this background, it is obvious that there is potential for friction between collecting societies and users. This is particularly evident when users or user associations are of the opinion that the conditions offered to them are objectively inadequate and the remuneration they are demanding is too high. Another point of contention can, for example, be the question of whether a coveted use falls under a certain tariff or not. The legislature provides for the arbitration board to resolve such conflicts.

function

General

According to Section 92 (1) VGG, the arbitration board "can be called upon by anyone involved in a dispute in which a collecting society is involved and which concerns one of the following matters":

  1. the use of works or services that are protected by copyright law;
  2. the remuneration obligation for devices and storage media ( § 54 UrhG) or the operator remuneration ( § 54c UrhG);
  3. the conclusion or amendment of a general contract.

Section 92 (2) VGG provides for further jurisdiction of the arbitration board for disputes in which a broadcasting company and a cable company are involved if the dispute concerns the obligation to conclude a contract for cable retransmission.

The appeal is made by means of a written application. The arbitration board is not a court itself, but an administrative body , but has a similar structure to a court and, in terms of proceedings, is closely based on proceedings before an ordinary court. Unlike an arbitration tribunal , the arbitration board does not issue a decision, but rather submits a reasoned settlement proposal to the parties involved as an arbitrator. The agreement proposed there is considered accepted if it is not contradicted.

In many cases, it is necessary to appeal to the arbitration board for legal enforcement - only then can the relevant claim be asserted in court. However, this only applies to the cases under 1. and 2. if the applicability or appropriateness of the tariff is in doubt. The competent court at first instance is the Higher Regional Court (OLG) at the seat of the arbitration board, i.e. the Munich Higher Regional Court . In accordance with the Code of Civil Procedure, an appeal can be lodged with the Federal Court of Justice against its final judgment .

The arbitration board is required to work towards an amicable settlement of the dispute. This also relieves the judiciary in the event of individual usage disputes.

Security deposit

A considerable amount of time usually elapses between the placing of devices and storage media on the market and payment of the fee. The associated proceedings before the arbitration board are for their part complex due to the empirical investigation that may still have to be carried out in accordance with Section 93 VGG to determine user behavior; In addition, a settlement proposal may be followed by court proceedings through two instances. When the VGG was introduced, the legislature therefore decided to give the arbitration board the power to order a security deposit ( e.g. bank guarantee ) from the debtor upon request . An importer of storage media must then, for example, provide this at the request of the Central Office for Private Transfer Rights (ZPÜ) in order to reduce the “considerable risk” of the ZPÜ that arises as a result of the long duration of the procedure.

The Munich Higher Regional Court can declare the arrangement of a security deposit enforceable and thus create the conditions for its enforcement. The OLG examines the order in full and can, if necessary, make a different version of it.

In the literature, some commentators have raised constitutional concerns against the provision of security.

occupation

The arbitration board consists of the chairman or his representative and two assessors. The members must be qualified to hold judicial office and are appointed by the Federal Ministry of Justice and Consumer Protection for a certain period of at least one year; Re-appointment is permitted. The arbitration board can also set up chambers in order to carry out its tasks efficiently .

It is true that the arbitration board is located at the DPMA as the supreme supervisory authority for collecting societies, the president of which also oversees the arbitration board. The panels of the arbitration board are nevertheless independent; In particular, the members are not bound by instructions.

workload

In 2016, the arbitration board was involved in 162 disputes. During the same period, 90 applications were processed. As in previous years, the number of applications pending at the end of the year rose again and amounted to 455 (2015: 383, 2014: 329, 2013: 225). Most of the new entries related to disputes between manufacturers or importers (and in some cases also dealers) of duplicating devices and storage media on the one hand and the ZPÜ on the other.

Web links

literature

  • Jörg Reinbothe: Arbitration in Copyright: The Arbitration Board according to the Perception Act - Function, Legal Nature and Antitrust Issues (§ 102a GWB) (=  Copyright treatises of the Max Planck Institute for Foreign and International Patent, Copyright and Competition Law, Munich . No. 16 ). Beck, Munich 1978, ISBN 3-406-07076-0 .
  • Gernot Schulze: The arbitration procedure . In: Karl Riesenhuber u. a. (Ed.): Law and Practice of GEMA: Handbook and Commentary . 2nd Edition. De Gruyter, Berlin 2008, ISBN 978-3-89949-460-0 , p. 709-742 , doi : 10.1515 / 9783899495782.4.677 .
  • Fedor Seifert: The arbitration board procedure as a procedural requirement in the copyright dispute . In: Jürgen Becker, Peter Lerche, Ernst-Joachim Mestmäcker (eds.): Wanderer between music, politics and law: Festschrift for Reinhold Kreile on his 65th birthday . Nomos, Baden-Baden 1994, ISBN 3-7890-3481-9 , p. 627-642 .
  • Angelika Strittmatter: Tariffs before the copyright arbitration board: Appropriateness, calculation bases, procedural practice (=  Berlin university publications on industrial property rights and copyright . No. 17 ). Berlin Verlag, Berlin 1994, ISBN 3-87061-442-0 .
  • Joachim von Ungern-Sternberg: To carry out the procedure before the arbitration board according to the Copyright Administration Act as a process requirement . In: Ansgar Ohly u. a. (Ed.): Perspectives of intellectual property and competition law: Festschrift for Gerhard Schricker for his 70th birthday . Beck, Munich 2005, ISBN 3-406-53501-1 , p. 567-580 .

Remarks

  1. ↑ BGBl. 2016 I p. 1190 .
  2. ↑ BGBl. 1965 I p. 1294 .
  3. ↑ BGBl. 1985 I p. 2543 .
  4. ↑ See § 2 VGG. Introductory to the whole Schack, Copyright and Copyright Contract Law , 8th edition. 2017, Rn. 1300, 1304 ff.
  5. ↑ DPMA, list of collecting societies that have a permit according to § 77 VGG ( memento of the original of August 19, 2017 in the Internet Archive ) Info: The @1@ 2Template: Webachiv / IABot / www.dpma.de archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF file, 0.1 MB), accessed on August 19, 2017.
  6. ↑ § 16 sentence 1 VGG.
  7. ↑ § 38 VGG.
  8. ↑ § 34 VGG.
  9. ↑ § 35 VGG.
  10. ↑ See Section 87 (5) UrhG.
  11. ↑ Section 97 (1) sentence 1 VGG.
  12. ↑ Official justification, BT-Drs. 10/837 , p. 24; Schulze, The Arbitration Proceedings , 2008, op. Cit., Rn. 153.
  13. ↑ Schack, Copyright and Copyright Contract Law , 8th edition 2017, Rn. 1364.
  14. ↑ § 105 VGG.
  15. ↑ Section 105 (3) VGG.
  16. ↑ § 92 VGG.
  17. ↑ Section 129 (1) VGG.
  18. ↑ Section 129 (3) VGG.
  19. ↑ Section 102 (2) VGG.
  20. ↑ Von Ungern-Sternberg, On the implementation of the procedure before the arbitration board according to the Copyright Administration Act as a process requirement , 2005, op.cit., P. 568.
  21. ↑ Official justification, BT-Drs. 18/7223 , p. 101.
  22. ↑ Official justification, BT-Drs. 18/7223 , p. 101 f. See §§ 107  f. VGG.
  23. ↑ See the official justification, BT-Drs. 18/7223 , p. 101.
  24. ↑ Section 107 (4) VGG.
  25. ↑ For example Alexander R. Klett and Kathrin Schlüter, The new collecting society law - What is coming? What's going on? What remains? , in: Kommunikation und Recht , Vol. 19, No. 9, 2016, pp. 567–572, here p. 571; Lea N. Mackert and Fabian Niemann, Significance of the new VGG for the fair balance between collecting societies and the equipment industry , in: Computer und Recht , Vol. 32, No. 8, 2016, doi: 10.9785 / cr-2016-0813 , Pp. 531-538, here pp. 537 f .; Judith Steinbrecher and Markus Scheufele, The government draft for a collecting society law and its effects on the digital economy , in: Journal for Copyright and Media Law , Vol. 60, No. 2, 2016, pp. 91–98, here p. 95.
  26. ↑ Section 124 (1) sentence 2 VGG.
  27. ↑ Section 124 (2) VGG.
  28. ↑ Section 124 (3) VGG.
  29. ↑ Sections 124 (1) sentence 1 VGG, 125 (2) VGG.
  30. ↑ Section 125 (1) VGG.
  31. ↑ On all of this: DPMA, Annual Report 2016 ( Memento of the original from August 19, 2017 in the Internet Archive ) Info: The @1@ 2Template: Webachiv / IABot / www.dpma.de archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF file, 7.1 MB), accessed on August 19, 2017, p. 47.
  32. ↑ DPMA, Annual Report 2016 ( Memento of the original from August 19, 2017 in the Internet Archive ) Info: The @1@ 2Template: Webachiv / IABot / www.dpma.de archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF file, 7.1 MB), accessed on August 19, 2017, p. 46.