Central office for private transfer rights
The Central Office for Private Transfer Rights ( ZPÜ ) is an amalgamation of German collecting societies in the legal form of a company under civil law based in Munich . Its function is to assert the copyright remuneration claims of the collecting societies involved in it from the reproduction of audio works and audiovisual works for private and other personal use and then to distribute the proceeds to the collecting societies. In 2017, the total distribution was around 575 million euros.
The Copyright Act (UrhG) provides for legal licenses for certain acts of use . This means that the use of a work is permissible under certain circumstances without the permission of the rights holder, but the legislature in return grants the rights holder a claim for remuneration. One of the most important statutory remuneration claims results from the so-called freedom of private copying : According to UrhG, works may be reproduced (i.e. copied, scanned, recorded etc.) for private and other personal use. The remuneration for private copying is not charged directly to the copier; this would also be practically impossible. Instead, the author is entitled to remuneration from all manufacturers and importers of devices and storage media that are suitable for making such reproductions ( (1) UrhG). The claim cannot be exercised directly by the individual rights holder themselves, but exclusively by collecting societies ( (1) UrhG).
One recalls how many different copyright or ancillary copyright laws may be reproduced for private and other personal use products protected using appropriate devices and storage media, it is clear that actually participate in this compensation claim many collecting societies. This is particularly striking in areas in which the same usage process affects several rights. This is often the case with audio works and audiovisual works, for example: If a modern mobile phone is used to store music, this affects the rights of composers and lyricists (→ GEMA), but also the ancillary copyrights of the sound carrier manufacturers (→ GVL). Not only music but also audio book titles can be saved on the phone. This in turn affects the copyrights of the respective book authors (→ VG Wort) as well as the rights of the speaker as a performing artist (→ GVL). Et cetera. A manufacturer of mobile telephones is thus confronted with claims from a large number of collecting societies in the field of audio works and audiovisual works.
If each collecting society were to approach the telephone manufacturer individually, this would entail high administrative costs, not just because of the multiple work involved. High coordination costs would also have to be assumed because the collecting societies will compete for the highest possible remuneration for “their” rights holders; in the negotiations with the telephone manufacturer, the other collecting societies would also fight for their own share of the remuneration simultaneously and to a certain extent "via gang". This explains why a merger of the collecting societies concerned - in which they approach the telephone manufacturer as a single entity and then negotiate the shares among each other - promises increased efficiency. This amalgamation takes place in the ZPÜ for the remuneration claim for audio works and audiovisual works. Efficiency is also increased in the opposite direction: it would also be time-consuming for the telephone manufacturer to have to contact each individual collecting society concerned in order to fulfill the reporting obligations incumbent on them under(3) and Copyright Act. For this reason, the legislature has ordered the collecting societies to store a common receiving center for such reports ( (3) sentence 1 UrhG). The ZPÜ also appears in this function.
The ZPÜ is not itself a collecting society within the meaning of Collecting Societies Act (VGG). While this resulted in an extensive exemption from the special regulations for collecting societies at the time of the Copyright Administration Act, the ZPÜ has been largely subject to this as a so-called dependent collecting institution since the Collecting Societies Act came into force in 2016 and in this role is subject to official supervision by the German Patent and Trademark Office ( , VGG).the
The ZPÜ has the legal form of a company under civil law . The managing director is GEMA. According to the articles of association , the ZPÜ serves the "administration of the statutory remuneration claims for reproductions of audio works and audiovisual works for private and other personal use in accordance with § 53 Para. 1–3 UrhG for collecting societies as well as the administration of remuneration claims and rights, which the former claims supplement, expand or replace them according to the current or future legal situation. Administration includes the assertion and enforcement of all rights vis-à-vis the claimant, the collection, administration and distribution of the income from the rights as well as activities that promote these tasks. ”These supplementary claims include, above all, the right to information that the copyright law grants to right holders in order to be able to quantify their remuneration claims in the first place.
The central office is not geared towards making a profit . Its nine shareholders are (as of November 2018):
- Society for musical performance and mechanical reproduction rights (GEMA)
- Society for the assumption and exercise of film showing rights (GÜFA)
- Society for the utilization of ancillary copyrights (GVL)
- Society for the Management of Film and Television Rights (GWFF)
- Treuhandgesellschaft Werbefilm (TWF)
- Collecting Society of Film and TV Producers (VFF)
- Collecting Society for Rights of Use to Films (VGF)
- Collecting Society Bild-Kunst (VG Bild-Kunst)
- Collecting Society Wort (VG Wort)
Thus, most of the 13 (as of November 2018) licensed collecting societies are organized in the ZPÜ. If a collecting society wants to become a partner in the ZPÜ, it must be approved and have a “representative position for certain professional groups or categories of rights holders”. Their inclusion then requires the consent of all previous shareholders.
The shareholders bring the remuneration claims assigned to them for copying of audio works and audiovisual works in the context of private copying into the ZPÜ and assign them to the ZPÜ for fiduciary maintenance without being tied to the ZPÜ as a whole . The ZPÜ then assumes the transferred claims in its own name and for its own account. It can set up tariffs for individual claims or all claims and conclude overall contracts with the rights users. For example, the ZPÜ has been asserting claims in the aforementioned market for mobile phones since 2004. There is both a tariff that specifies the remuneration staggered according to year and type of mobile phone (consumer mobile phone vs. business mobile phone), as well as a general contract for mobile phones with Bitkom , the industry association of the German information and telecommunications industry. A manufacturer or importer who does not belong to Bitkom pays the normal tariff under this regime and is regularly requested by the ZPÜ to provide information and pay; Bitkom members receive a discount due to the administrative simplification brought about by the overall contract. This pattern can also be found in other areas in which the ZPÜ claims compensation.
In addition to exercising the remuneration claims for reproductions of audio works and audiovisual works, the ZPÜ also carries out collection mandates for certain non-submitted remuneration claims by collecting societies. Such collection agreements exist in particular for claims from the reproduction of text and images from the repertoire of VG Wort and VG Bild-Kunst. This procedure follows the technical conditions: Many of the devices and storage media in use today are suitable for the reproduction of audio and audiovisual works as well as images and text works (example: USB stick, hard drives, etc.). Against this background, the collecting societies involved found it advantageous to assert the claims for images and text works with such devices and storage media via the ZPÜ. ZPÜ, VG Wort and VG Bild-Kunst lead the overall contract negotiations here and publish joint tariffs.
The distribution of the income to the sponsoring companies takes place (after deduction of the administrative costs) according to distribution plans, which must be decided unanimously by the shareholders. The legislature has not made any further regulations here; In general, only(2) sentence 1 UrhG states that every beneficiary is entitled to an “appropriate share” of the remuneration paid. In practice, this can naturally also lead to differences of opinion within the collecting societies united in the ZPÜ.
The ZPÜ was founded in its current legal form in 1963. The founding shareholders were GEMA, VG Wort and GVL. It was originally conceived as a collecting society itself and initially only pursued the statutory remuneration claim against the manufacturers and importers of tape and video devices, which had been provided since the introduction of the Copyright Act in 1965. The ZPÜ abandoned its status as a collecting society a little later by amending the articles of association. 1985 ZPÜ also took over the enforcement of the newly introduced and blank tapes manufacturers and importers payable blank tape levy . After video recorders had become more and more widespread and thus a remuneration also seemed appropriate in this area, the collecting societies working for film authors and film performance protection beneficiaries joined the ZPÜ as shareholders and brought in their rights.
- Reinhold Kreile : Income and distribution of the statutory device and empty cassette remuneration for private duplication in Germany: A system has proven itself . In: Intellectual Property and Copyright Law, International Section . tape 41 , no. 1 , 1992, p. 24-36 .
- Stefan Müller: The collaboration between the collecting societies . In: Harald Heker , Karl Riesenhuber (Hrsg.): Law and Practice of GEMA: Handbook and Commentary . 3. Edition. De Gruyter, Berlin 2018, ISBN 978-3-11-037249-6 , pp. 781-788 , doi : 10.1515 / 9783110366792-013 .
- Claudia Rossbach: The remuneration claims in German copyright law: practical perception, legal transactions and dogmatics . Nomos, Baden-Baden 1990, ISBN 3-7890-2084-2 .
- Verena Wintergerst: ZPÜ . In: Rolf Moser, Andreas Scheuermann, Florian Drücke (Hrsg.): Handbuch der Musikwirtschaft . 7th edition. Beck, Munich 2018, ISBN 978-3-406-72028-4 , pp. 314-322 .
- zpue.de - Official website
- zpue.de / ... - Articles of Association of ZPÜ in the version of the resolutions of the shareholders from November 30, 2016 (PDF file, 0.2 MB)
- ZPÜ, Transparency Report of the ZPÜ 2017 (PDF file, 0.2 MB), accessed on November 19, 2018, p. 8.
- Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 54h Rn. 7th
- Rossbach, The remuneration claims in German copyright law , 1990, op. Cit., P. 220 f. So also your own assessment, cf. ZPÜ, Transparency Report of the ZPÜ 2017 (PDF file, 0.2 MB), accessed on November 19, 2018, p. 3.
- See also Reinhold Kreile, The Cooperation of the Collecting Societies , in: Reinhold Kreile, Jürgen Becker and Karl Riesenhuber (Eds.), Law and Practice of GEMA: Handbook and Commentary , 2nd edition, De Gruyter, Berlin 2008, ISBN 978 -3-89949-460-0 , pp. 783-791, paras. 22; also critical of this is Martin Vogel, Perquisition Law and Collecting Societies in the Federal Republic of Germany: Taking stock of the harmonization of copyright law in the European Community , in: Commercial legal protection and copyright , vol. 95, no. 6, 1993, pp. 513-531 , here p. 517.
- Wintergerst in Moser / Scheuermann / Drücke, Handbook of the Music Industry , 7th edition 2018, § 31 marginal no. 15th
- Section 1 (1) of the articles of association (in the version dated November 30, 2016).
- Section 6 (1) of the articles of association (in the version dated November 30, 2016).
- Section 2 (1) of the articles of association (in the version dated November 30, 2016).
- Section 2, Paragraph 4 of the Articles of Association (in the version dated November 30, 2016).
- ZPÜ, partner of ZPÜ , accessed on November 19, 2018.
- DPMA, List of Collecting Societies , accessed on November 19, 2018.
- Section 3 (2) of the articles of association (in the version dated November 30, 2016).
- Section 3 (3) of the association (in the version dated November 30, 2016).
- § 4 para. 1 f. Articles of Association (in the version dated November 30, 2016).
- Section 4 (3) of the articles of association (in the version dated November 30, 2016).
- ZPÜ, mobile phones , accessed on 23 March 2018th
- Wintergerst in Moser / Scheuermann / Drücke, Handbook of the Music Industry , 7th edition 2018, § 31 marginal no. 18th
- ZPÜ, distribution plan of the ZPÜ for income for PCs with and without built-in burners for the years 2008 to 2010 , accessed on November 19, 2018.
- Section 5 (1) of the articles of association (in the version dated November 30, 2016); Wintergerst in Moser / Scheuermann / Drücke, Handbuch der Musikwirtschaft , 7th edition. 2018, § 31 marginal number. 38.
- Müller, The Cooperation of Collecting Societies, 2018, op.cit., Rn. 19; Karl Riesenhuber, The Interpretation and Control of the Administration Agreement , De Gruyter, Berlin 2004, ISBN 978-3-89949-183-8 , doi : 10.1515 / 9783110915792 , p. 19.
- Müller, The Cooperation of Collecting Societies, 2018, op.cit., Rn. 9.
- Müller, The Cooperation of Collecting Societies, 2018, op.cit., Rn. 10.
- Müller, The Cooperation of Collecting Societies, 2018, op.cit., Rn. 10 f.
- Müller, The Cooperation of Collecting Societies, 2018, op.cit., Rn. 11.
- Reinhold Kreile, The Cooperation of Collecting Societies , in: Reinhold Kreile, Jürgen Becker and Karl Riesenhuber (Eds.), Law and Practice of GEMA: Handbook and Commentary , 2nd Edition, De Gruyter, Berlin 2008, ISBN 978-3- 89949-460-0 , pp. 783-791, paras. 7th
- Reinhold Kreile, The Cooperation of Collecting Societies , in: Reinhold Kreile, Jürgen Becker and Karl Riesenhuber (Eds.), Law and Practice of GEMA: Handbook and Commentary , 2nd Edition, De Gruyter, Berlin 2008, ISBN 978-3- 89949-460-0 , pp. 783-791, paras. 8th.