Guiding principles of the court

§ Section 12 no. 7 para. 1 MTV Zeitschriften limits the use of the copyright transfer without remuneration to the objects for which the editor is or was active in accordance with his employment contract and – under certain conditions regulated in more detail there – to the use of the texts written by the editor in archives and databases. Only this – quasi activity-related – use of copyright is “compensated” with the remuneration.

Tenor

1. On the plaintiff’s appeal, the judgment of the Hessian Higher Labor Court of September 29, 2017 – 14 Sa 428/16 – is set aside.
2. The case is referred back to the Regional Labor Court for a new hearing and decision – also on the costs of the appeal.

Facts of the case

1

The parties are in dispute about additional remuneration pursuant to Section 12 No. 7 of the collective agreement for editors of magazines (hereinafter referred to as MTV Zeitschriften) for the online use of 114 texts written by the plaintiff during the employment relationship.

2

The plaintiff was employed by the defendant publishing house as an editor of the magazine “U-Magazin” from June 1, 2000 to December 31, 2002. The employment contract included the following:

Ҥ 4

References

1.

Mr. F’s annual gross salary amounts to DM 100,000, including vacation pay and the collectively agreed annual benefit.

…

§ 9

Transfer of the rights of use

1.

The scope of the transfer of rights of use is governed by Section 12 of the collective agreement for magazine editors.

…

3.

The remuneration required for magazine editors in accordance with Section 12 No. 7 of the General Collective Agreement shall be covered by the gross remuneration specified in Section 4 of this agreement with regard to the publisher’s right to reproduction and distribution in physical form. This shall also apply to all other electronic or other forms of use.”

3

The MTV Zeitschriften as amended on April 30, 1998, which contains the following provisions – insofar as they are of interest in the present case – applied to the employment relationship of the parties by virtue of their mutual commitment to the collective agreement:

Ҥ 12

Copyright

1.

Scope of the copyright transfer

The editor grants the publisher the exclusive right, unlimited in terms of time, territory and content, to use copyrights and related rights within the meaning of the Copyright Act, which he/she has acquired in the fulfillment of his/her contractual obligations arising from the employment relationship, from the time the right arises. The grant shall include the Publisher’s authorization to use the rights in physical form in Germany and abroad and to reproduce them publicly in non-physical form. This applies in particular to print media, film, radio and/or digital media (telecommunications and data services, e.g. online services as well as databases and electronic carrier media (e.g. magnetic, optical, magneto-optical and electronic carrier media such as CD-ROM and diskettes), irrespective of the transmission and carrier technologies.

…

7.

Remuneration regulation

The use of the rights granted under Section 1 in objects (including the digital editions) for which the editor works in accordance with his/her employment contract (protocol note: the prerequisite is that the contractual obligation to work relates to the object and/or the digital edition; only the transfer of rights to other types of use is not sufficient) is free of charge, as is the use of the archive/databases for internal purposes of the publisher, affiliated companies and cooperating publishers or for the personal use of third parties.

In the event of further use, the editor is entitled to additional appropriate remuneration in the cases listed below, even after termination of the employment relationship:

a)

for the public reproduction of the contributions in non-physical form with the exception of advertising for the publisher,

b)

for the transfer of rights of use to third parties pursuant to Clause 3 with the exception of

– of uses within an editorial community,

– for jacket deliveries and other comparable cooperation,

c)

for the use of the editor’s contributions in other objects of the same publishing house to which the employment contract does not extend, including use in book form.

A remuneration of at least 40% of the net proceeds generated from the exploitation, or alternatively of the net proceeds normally achievable, less expenses and VAT, is deemed appropriate. Expenses include direct production, marketing and distribution costs.

…

§ 15

Claims prosecution and arbitration

1.

With the exception of the regulation for insurance (§ 8), unfulfilled claims arising from the employment relationship must be asserted within three months of the due date. If a party refuses to fulfill the asserted claim in writing, it must be asserted in court within six months of the due date. An action for unfair dismissal does not affect the time limits that apply to a wage claim. If the claim is asserted later than according to sentence 1 and sentence 2, the party against whom the claim is asserted shall be entitled to refuse performance.”

4

The 114 texts written by the plaintiff for the “U-Magazin” were placed by the defendant in an “online magazine archive”, which was made available on the defendant’s website at w in 2008 and could be accessed and used by anyone free of charge. The defendant digitized the articles and stored them in PDF format. Access was via a search mask with the terms “C”, “U-Magazin” or “alle Zeitschriften”. If a search term was entered via a further input field, a list of all PDF files relating to the topic searched for and published in one of the archived journals appeared. Individual articles could also be called up and printed out in the “online journal archive” by entering the author’s name. The search was possible across all issues or limited to individual titles of the defendant. There were no links between individual issues or individual articles.

5

After the plaintiff demanded additional remuneration in a letter dated January 8, 2015, citing Section 12 No. 7 MTV Zeitschriften, the defendant discontinued the online use of his text contributions.

6

With the action filed on May 4, 2015 and served on the defendant on May 18, 2015, the plaintiff pursued his claim for payment and argued that the digital use of his texts in dispute was subject to remuneration pursuant to Section 12 para. 2 no. 7 lit. a and lit. c MTV Zeitschriften. Since it was not possible for him to put a concrete figure on the revenues generated by the use, these had to be estimated in accordance with Section 287 ZPO. The “Overview of contractual conditions and fees for the use of journalistic contributions on the Internet” of the German Association of Journalists could be used for this purpose. The plaintiff has claimed that he only became aware of the uploading of his print contributions to the defendant’s online archive at the end of November 2014.

7

The plaintiff filed a motion in the last instance,

order the defendant to pay him additional appropriate remuneration in an amount to be determined by the court, but at least EUR 40,000.00, plus interest at a rate of five percentage points above the prime rate from the date of lis pendens, for making 114 specified text contributions publicly available under w.

8

The defendant applied for the action to be dismissed and argued that further remuneration was already ruled out on the basis of Section 9 No. 3 of the employment contract. Furthermore, the disputed use of the plaintiff’s texts was exempt from remuneration pursuant to § 12 no. 7 para. 1 MTV Zeitschriften. Finally, a possible claim had lapsed in accordance with the limitation period stipulated in the collective agreement. The online use of the “U-Magazin” had long been known to the plaintiff and all of its employees.

9

The labor court dismissed the claim. The Regional Labor Court dismissed the plaintiff’s appeal. With the appeal allowed by the Regional Labor Court, the plaintiff continues to pursue his claim, while the defendant requests that the appeal be dismissed.

Reasons for the decision

10

The plaintiff’s appeal is successful. The action cannot be dismissed on the grounds of the Regional Labor Court. The Senate cannot decide whether and to what extent the plaintiff is entitled to additional remuneration pursuant to § 12 No. 7 (2) MTV Zeitschriften on the basis of the findings of the Regional Labor Court to date. This leads to the annulment of the appeal judgment and the referral of the case back to the Regional Labor Court (§ 562 para. 1, § 563 para. 1 sentence 1 ZPO).

11

I. The lower courts implicitly assumed correctly that legal recourse to the courts for employment matters is open, Section 104 sentence 2 UrhG in conjunction with Section 2 para. 2 letter b ArbGG. Accordingly, even after the termination of the employment relationship (see BAG May 31, 2016 – 9 AZB 3/16 – para. 8), the courts for employment matters have jurisdiction for civil law disputes between employees and employers which, as copyright disputes arising from employment relationships, relate exclusively to claims for payment of agreed remuneration.

12

1 This is the case here. Neither the wording nor the meaning and purpose of the provision require that the subject matter of the legal dispute must be a copyright remuneration agreed in the employment contract. If – as in the case in dispute – a collective agreement applies to the employment relationship, Section 2 (2) (b) ArbGG also covers copyright remuneration agreed in a collective agreement, as provided for in Section 12 No. 7 (2) MTV Zeitschriften. Otherwise, the ordinary courts would have to apply collective bargaining law. Außerdem gewähren § 32 Abs. 4, § 36 Abs. 1 Satz 3 UrhG Tarifverträgen einen absoluten Vorrang bei der Bestimmung der Angemessenheit einer Vergütung für den Urheber (vgl. Schricker/Loewenheim/Schricker/Haedicke Urheberrecht 5. Aufl. § 32 UrhG Rn. 23 mwN) und verdeutlichen damit, dass „vereinbarte Vergütung“ iSd. § Section 104 sentence 2 UrhG, Section 2 para. 2 letter b ArbGG can also be remuneration under a collective bargaining agreement, provided that the relevant collective bargaining agreement applies to the employment relationship.

13

2) The fact that copyright issues may also have to be answered when applying and interpreting the remuneration provision in the collective bargaining agreement does not preclude recourse to the courts for employment matters (see Section 2 (2) (a) ArbGG BAG May 31, 2016 – 9 AZB 3/16 – para. 12). The plaintiff also exclusively claims remuneration pursuant to Section 12 No. 7 (2) MTV Zeitschriften and does not alternatively invoke reasonable remuneration pursuant to Section 32 (1) sentence 2 UrhG (for such a case, see OLG Düsseldorf January 7, 2016 – I-20 W 84/15 – para. 13).

14

II. The action is admissible, in particular sufficiently specific within the meaning of sec. § Section 253 (2) no. 2 ZPO.

15

1. the subject matter of the dispute is exclusively additional remuneration for the online use of the texts specified in the application and written by the plaintiff during the employment relationship for the magazine “U-Magazin” at the Internet address w for the entire duration of the use. The plaintiff has not contested the corresponding interpretation of the application by the Regional Labor Court in the appeal. Nor does it reveal any errors of law.

16

2 The plaintiff was allowed to leave the amount of the requested remuneration to the discretion of the court because Section 12 No. 7 (2) MTV Zeitschriften, on which he bases his claim, provides for “reasonable additional remuneration”. In this case, it is sufficient to state the basis for the exercise of discretion and an order of magnitude of the claim (see BAG August 11, 2016 – 8 AZR 406/14 – para. 42; BGH January 20, 2011 – I ZR 133/08 – para. 14 mwN [Appropriate translator remuneration V]). The plaintiff has complied with this. He has stated the facts that the court should take into account when determining the amount and the amount of the claim asserted, which he has determined to be no less than EUR 40,000.00.

17

III. The action cannot be dismissed on the grounds of the Regional Labor Court that the online use of the plaintiff’s texts at issue is exempt from remuneration pursuant to Section 12 No. 7 (1) MTV Zeitschriften. On the contrary, the plaintiff is entitled to additional appropriate remuneration in accordance with § 12 no. 7 para. 2 letter a MTV Zeitschriften, which is not excluded by § 9 no. 3 of the employment contract.

18

1. according to § 9 no. 3 of the employment contract, the agreed annual remuneration is to include the “remuneration required … in accordance with § 12 no. 7 of the general collective agreement for editors of magazines”. The provision is – irrespective of the question of whether it would satisfy the transparency requirements of Section 307 (1) sentence 2 BGB as general terms and conditions (see on flat-rate remuneration for overtime BAG 16 May 2012 – 5 AZR 331/11 – para. 20 et seq., BAGE 141, 324) – invalid due to a violation of the principle of favorability of Section 4 (3) TVG.

19

a) According to the unchallenged findings of the Regional Labor Court, the MTV Zeitschriften as amended on April 30, 1998 applied to the employment relationship of the parties by virtue of mutual collective bargaining. In § 12 No. 7 Para. 2, this provides for additional appropriate remuneration in the event of further use, i.e. use that goes beyond the use of the copyrights acquired by the employee within the scope of the employment relationship that is possible without remuneration in accordance with § 12 No. 7 Para. 1, the amount of which is determined in accordance with the provisions of § 12 No. 7 Para. 3 MTV Zeitschriften. With the wording “In the event of further use … – even after termination of the employment relationship -“, § 12 no. 7 para. 2 MTV Zeitschriften establishes a remuneration claim that lasts beyond the end of the employment relationship, which is already established by the copyright transfer in the employment relationship in accordance with § 12 no. 1 MTV Zeitschriften and whose (full) accrual depends only on the later actual “further use”. If this occurs, the plaintiff’s claim to remuneration could only be taken away by a change in the relevant collective bargaining provisions occurring after termination of the employment relationship within the (narrow) limits of a permissible retroactive effect (see only Wiedemann/Thüsing TVG 8th ed. § 1 para. 155 with further references). The defendant has not objected that this is or could be the case.

20

b) § 9 no. 3 of the employment contract does not deviate from § 12 no. 7 para. 2 MTV Zeitschriften in favor of the plaintiff.

21

aa) The examination of favorability is carried out according to a comparison of factual groups, in which the sub-complexes of the different regulations, which are to be determined by interpretation and which are internally related, are compared. The decisive factor in the comparison of favorability to be made on the basis of an objective standard of assessment is the abstract provisions and not the result of their application in the individual case. If it cannot be objectively determined beyond doubt that the regulation deviating from the normative collective agreement is more favorable for the employee – either because it is an “ambivalent” or a “neutral” regulation – the collective agreement remains mandatory (BAG 22 August 2018 – 5 AZR 551/17 – para. 14; 15 April 2015 – 4 AZR 587/13 – para. 28 et seq., BAGE 151, 221).

22

bb) The remuneration to which the plaintiff is entitled as consideration for his work as editor of “U-Magazin” and the associated copyright transfer and the additional remuneration for the further use of the transferred copyrights are not intrinsically linked and therefore belong to different categories. § Section 12 no. 7 para. 1 MTV Zeitschriften limits the use of the copyright transfer without remuneration (section 12 no. 1 MTV Zeitschriften) to the objects for which the editor is or was active in accordance with his employment contract and – under certain conditions regulated in more detail there – to the use of the texts written by the editor in archives and databases. The collective bargaining standard thus assumes that only this – quasi activity-related – use of copyright is “compensated” with the remuneration. The additional remuneration pursuant to Section 12 No. 7 (2) MTV Zeitschriften for further use is therefore not a consideration for the work to be performed (see on this requirement BAG December 12, 2018 – 4 AZR 123/18 – para. 37 et seq. with further references), but is a special remuneration determined by collective agreement for further use of the author’s works within the meaning of Section 32 (4) UrhG. § Section 32 para. 4 UrhG. The agreement of a lump-sum compensation for a further use of copyright within the meaning of sec. § Section 12 no. 7 para. 2 MTV Zeitschriften through the contractual remuneration is therefore not more favorable than the collectively agreed provision and is therefore invalid pursuant to Section 134 BGB in conjunction with Section 4 para. 3 TVG.

23

2. the Regional Labor Court wrongly assumed that the use of texts in dispute, which the plaintiff wrote for the “U-Magazin” in the context of his employment relationship, was exempt from remuneration pursuant to § 12 No. 7 (1) MTV Zeitschriften.

24

a) Accordingly, the use of the copyrighted works of a magazine editor is free of charge if it takes place in the print and/or digital edition of the magazine or magazines for which the editor is obligated under the employment contract (for use in digital editions of the magazine, see also LAG Cologne January 12, 2001 – 11 Sa 1062/00 -). If the copyrighted works of an editor are placed in an archive or a database, such use is also free of charge according to § 12 no. 7 para. 1 last half-sentence MTV Zeitschriften if it is for internal purposes of the publisher, affiliated companies and cooperating publishers or for the personal use of third parties.

25

b) These requirements are not met in the case of the disputed use.

26

aa) The appeal is right to complain that the assumption of the Regional Labor Court that the use in dispute is free of remuneration because the “magazine archive” in dispute is ultimately nothing other than the digital edition of the “U-Magazin” violates Section 12 No. 7 MTV Zeitschriften. This is because the collective bargaining provision expressly distinguishes in its remuneration regulation between “objects” – those for which the editor works in accordance with his employment contract (§ 12 no. 7 para. 1 MTV Zeitschriften) and those to which the employment contract does not extend (§ 12 no. 7 para. 2 letter c MTV Zeitschriften) – and “archives/databases”. An archive remains an archive even if it is “managed” digitally and is not a digital edition of a magazine, contrary to the clear distinction in § 12 no. 7 para. 1 MTV Zeitschriften. Such a digital edition requires that it is published and distributed with or in temporal connection with the respective print edition of the magazine (similarly – on the different function of archive/database and digital edition of a daily newspaper – Brandenburg Higher Regional Court August 28, 2012 – 6 U 78/11 – para. 67).

27

bb) If the copyrighted works of an editor are not only collected in an archive or a database, but also made accessible via a “search system” and made usable for third parties, such use is only exempt from remuneration pursuant to Section 12 No. 7 (1) last half-sentence MTV Zeitschriften under the conditions stated therein. However, these are not present in the case in dispute. According to the terms of use established by the Regional Labor Court, the use of the database “Heftarchiv” was not restricted to internal purposes of the defendant or its affiliated companies and cooperating publishers, but was accessible to everyone, without it being ensured that third parties could only access the database for personal use.

28

3. the plaintiff’s claim to additional remuneration follows from § 12 no. 7 para. 2 letter a MTV Zeitschriften.

29

a) The posting of the texts written by the plaintiff in the database at issue constitutes a communication to the public in non-physical form within the meaning of sec. § 12 no. 7 para. 2 lit. a MTV Magazines. The plaintiff’s works have been made available to the public by wireless means in such a way that they were accessible to members of the public from places and at times of their choice (Section 19a UrhG). The exception of “advertising for the publisher” does not apply.

30

aa) The wording as well as the meaning and purpose of this exception to the obligation to pay remuneration require that the copyrighted works of the editor (or excerpts from them) are used to specifically advertise the publisher in order to sell its products to readers or retailers. For this purpose, the publisher should – in addition to the exemption from remuneration pursuant to Section 12 No. 7 (1) MTV Zeitschriften – be able to use the copyrighted texts or contributions of the editor created in fulfillment of an employment contract obligation (also) as advertising material without remuneration. However, their mere placement in a (digital) archive or database as such does not fulfill this requirement and does not constitute advertising – even according to common usage.

31

bb) Accordingly, the defendant has not objected (and substantiated) that it used the 114 texts of the plaintiff in dispute to specifically advertise its publishing house – for example to attract new readers or subscribers. In the lower courts, it merely argued that it had set up the archive – which did not only contain texts by the plaintiff – in order to achieve an “advertising effect”.

32

b) It can be left open whether – as the plaintiff believes – a claim for remuneration would also follow from § 12 no. 7 para. 2 lit. c MTV Zeitschriften or whether it follows from the overall context of the collective agreement that the phrase “in other objects of the same publishing house” refers only to magazines, but not to archives and databases.

33

IV. Whether the claimant’s entitlement to further remuneration has lapsed due to his failure to assert it in good time in accordance with § 15 No. 1 MTV Zeitschriften and – if not – to what extent it exists cannot be decided by the Senate on the basis of the findings of the Regional Labor Court to date.

34

1) The Regional Labor Court – consistently from its point of view – left open whether the plaintiff asserted an additional remuneration in due time within the two-stage preclusion period of § 15 No. 1 MTV Zeitschriften. It will therefore have to determine in the further appeal proceedings whether the plaintiff – which the defendant has denied – only became aware of the use of his texts in dispute at the time he claims. This is because the claim to additional remuneration pursuant to § 12 no. 7 para. 2 MTV Zeitschriften arises with the further use by the plaintiff within the meaning of the collective standard. The claim to additional remuneration pursuant to Section 12 No. 7 (2) MTV Zeitschriften arises with the further use by the (former) employer within the meaning of the collective bargaining provision. However, maturity within the meaning of collective bargaining preclusive periods does not always occur automatically when the claim arises. Rather, it must actually be possible for the creditor to assert his claim (BAG November 14, 2018 – 5 AZR 301/17 – para. 27 mwN). This presupposes (at the very least) that the author is aware of further use within the meaning of Sec. § Section 12 no. 7 para. 2 MTV Zeitschriften.

35

2. with regard to the amount of the additional remuneration, Section 12 No. 7 (3) MTV Zeitschriften specifies what is deemed appropriate (on the relevance of criteria for appropriate remuneration resulting from a collective agreement, see also BGH September 15, 2016 – I ZR 20/15 – para. 8 [GVR Tageszeitungen III]). The Regional Labor Court will therefore have to determine whether and to what extent the defendant generated revenue from the exploitation of the plaintiff’s texts at issue during the period of use. If, as the defendant claims, the defendant did not generate any income from this, the “normally achievable” income is decisive in accordance with § 12 no. 7 para. 3 MTV Zeitschriften. The Regional Labor Court will have to determine these – if necessary after further factual submissions by the parties – or, if the clarification of all relevant circumstances is associated with difficulties that are disproportionate to the significance of the disputed part of the claim, estimate them in accordance with § 287 para. 2 in conjunction with para. 1 sentence 1 and sentence 2 ZPO.