Ausschüttungsansprüche von Berechtigten gegen ihre Verwertungsgesellschaft

Collective management organizations (CMOs) have a fiduciary duty to distribute their rights revenue to those right holders only on whose behalf they have managed copyrights during the accounting period. The distribution must be aligned with the financial performance of the administered right. The CMO's bylaws cannot override this fiduciary duty. However, not only original right holders are entitled for distribution but also those persons who derive their rights from them. The CMO cannot take into consideration every individual agreement as to the sharing of revenues between authors and their publishers when distributing the remunerations, even if such agreements should be customary. This result has not been altered by the recent insertion of Sec. 27(2) Verwertungsgesellschaftengesetz (VGG) and of Sec. 27a VGG as interpreted in accordance with the Directives 2014/26/EU, and 2001/29/EC respectively. Sec. 315 BGB awards the CMOs with limited discretion in assessing each rights holder's personal share. It is not only limited by the prohibition of arbitrariness. The CMOs are bound by law to »act in the best interests of the right holders« and »regularly, diligently and accurately distribute[] the amount due«, enshrined in EU law, and, finally, the distribution plan is subject to scrutiny under Sec. 307 BGB. The procedural rules regarding the revenue distribution are subject to judicial oversight under Sec. 315(3) BGB as well. This has important effects regarding the operation of the so called »curia system« within German CMOs. If the CMO fails to meet these standards, the courts, upon complaint from an author, must determinate his fair share. It is not required that the CMO's distribution plan is altered beforehand. The DPMA's governmental supervision fails in effectively preventing any undue delay and possibly abuse of power within CMOs. Thus, other solutions are in order to remedy this situation. As long as proper distribution to the authors is not assured, any third party may oppose the CMO's fair remuneration claim (Art. 5 (2) lits. a and b of Directive 2001/29/EC) arguing that their remuneration does ultimately not benefit the right holders. The Federal Court of Justice's refusal to allow this defense conflicts with judgments of the CJEU and the Austrian Supreme Court.

Marcel Bisges: Die kleine Münze im Urheberrecht