Germany's new Copyright Act brings in a number of changes, two of which are particularly relevant to games developers and publishers: the new author information right; and the introduction of a time limit on certain types of exclusive licence.
Germany's revised Copyright Act – what do games developers and publishers need to know?
Amendments to the German Copyright Act took effect on 1 March 2017, resulting in important changes to German copyright law, some of which impact on the games industry.
The amendments significantly strengthen the rights of copyright owners and implement new obligations on users of their works. Although software is largely exempt from these changes, they affect game publishers and developers because many elements of games can attract copyright protection, including graphics and sounds.
The amendments apply to contracts entered into by copyright owners/owners of neighbouring rights and users of their works on or after 1 March 2017.
Right to information
The authors of copyrighted works, and performing artists (which in games will include voice actors), now have a statutory right to information regarding the extent of the use of the work and the proceeds and benefits generated through its exploitation. They have an enforceable right to request information on an annual basis from their contractual partners and any sub-licensees who “significantly determine the use of the work economically” (e.g. a publisher commissioning the development); or whose proceeds and benefits are “grossly” disproportionate to the rights owner’s remuneration. Authors who have made only minor contributions do not benefit from the new right and those in receipt of requests are not required to comply if a request is unreasonable.
The statute is silent on whether information rights also apply to employees against their employers. While such claims are not expressly excluded, there are good reasons to argue that employees should not ordinarily benefit because such claims would be unreasonable or contrary to the “nature” of the employment agreement.
Expiry of exclusive licences after ten years
Where an author has granted an exclusive licence in return for a fixed-fee payment, exclusivity will automatically end ten years after the grant, and the author will then be entitled to grant licences to other users. In effect, the formerly exclusive licence turns into a non-exclusive licence. Parties are, however, still able to enter into an unlimited licence agreement five years after exclusivity was initially granted.
This provision does not apply to:
- authors who only made a minor contribution to the work;
- where the work is supposed to be used as a trade mark or design; or
- if the agreed remuneration provides for a revenue share or similar model, rather than a fixed fee.
Injunctions in cases of detrimental deviations from Joint Remuneration Agreements
Another change introduced by the amendments to the Copyright Act is the scope for Associations of copyright owners and users to apply for injunctions against a user whose contracts with copyright owners deviate from “Joint Remuneration Agreements” to the detriment of the copyright owners. Such Joint Remuneration Agreements can be entered into by associations of authors and of users to establish equitable remuneration rules for specific industries. Currently there are no such joint agreements for the German games industry but if that changes, this will become relevant.
The amendments to the German Copyright Act result in important changes for the games industry (as well as other industries where copyright affords significant protection). The right to information is likely to result in considerable effort and expense for publishers and developers who have to comply with requests.
The introduction of a shelf life on certain exclusive licences is completely new in German copyright law and may seriously limit the possibilities for long-term exploitation and recovery by licensees. Publishers and developers need to ensure their contracts take account of the new law.