- A. Overview
- B. Scope of the waiver (p. 1)
- C. Restriction of the waiver (p. 2)
- D. Version history
- E. Position of CC
Literature: Christina Angelopoulos, Creative Commons and Related Rights in Sound Recordings, 11 January 2012;Oleksandr Bulayenko, MusicMatic – The French Supreme Court´s Decision on Creative Commons Plus (CC+) Commercial Licensing and Mandatory Collective Management of the Right to Remuneration for Communication to the Public of Commercial Phonograms, IIC 2020, 668; Norbert P. Flechsig, Flechsig, GRUR 2016, 1103; Dominik König, Das einfache, unentgeltliche Nutzungsrecht für jedermann, 2016; Stefan Müller, Der Verzicht auf technische Schutzmaßnahmen (The waiver of technical protection measures), GRUR 2011, 26; Robert Staats, Open Access und VG WORT – passt das zusammen? (Open access and VG WORT – do they go together?), in: Ius Vivum: Kunst – Internationales – Persönlichkeit – Festschrift für Haimo Schack zum 70. Geburtstag(Art – International – “Personality – Commemorative publication for Haimo Schack on his 70th birthday), 2022, 353; Malte Stieper, Reorganisation of the copyright levy on devices by the ECJ, EuZW 2013, 699.
A. Overview
162 The essence of any open content licensing is the permission for licensees to use the licensed material free of charge within the scope of the licence . For this purpose, in accordance with Section 2.a.1, a royalty-free right of use is granted, which covers any use licensed under the CCPL. Complementary to this, the present section regulates a waiver of remuneration for remuneration mechanisms of any kind: Sentence 1 contains an explicit waiver of remuneration for the "exercise of the licensed rights", insofar as such a waiver is legally possible or is not prevented by remuneration mechanisms over which licensors have no control. Section 2 relativises the waiver by reserving remuneration for licensors for "all other cases".
163 The clause raises questions, particularly with regard to its interaction with statutory remuneration claims in the case of copyright exceptions: in practice, CC licensors often have their rights administered by collecting societies. They share their works as open content and at the same time participate in the distribution of statutory remuneration claims for statutory usage permissions. This is common practice especially in the field of scientific open access publications: the fact that a scientist places a paper under a CC licence for free use and distribution and at the same time is a beneficiary of VG Wort in order to participate in the distribution of statutory remuneration claims is the prototype of the coexistence of CC licensing and statutory remuneration claim.
164 In general, the question arises as to how the model of remuneration-free open content licences is compatible with remuneration mechanisms .
B. Scope of the waiver (p. 1)
165 Remuneration waiver, legal nature, waiver agreement. An open content licence is a contract for a free right of use with rights and obligations for licensees, not a unilateral waiver by the rights holders of their rights in favour of the general public using the content. At the same time, the CCPL contains the present waiver clause, which generally addresses remuneration claims that have already arisen or may arise in the future.
166 In general, a waiver is understood to be a unilateral commitment not to assert a claim. The claim is then unenforceable from the creditor's point of view, but remains in existence and can therefore still be fulfilled by the debtor. As an institution, the German Civil Code (BGB) does not expressly provide for a general unilateral waiver of a claim under the law of obligations;
167 A contractually agreed waiver is an expression of private autonomy. However, the UrhG declares rights and claims to be indispensable in numerous contexts in order to prevent the exploitation of authors. For example, according to § 63a (1) sentence 1 UrhG, authors cannot waive statutory remuneration claims in advance. Nevertheless, advance waivers are ineffective.
168 Against this background, it is important to note that the CCPL does not declare the waiver of remuneration to be absolute, but only to the extent possible. The waiver does not apply to legally binding claims. In this way, the CCPL avoids friction with legal claims that are not disposable.
169 However, in many cases, the effect of remuneration exemption also applies to previously indispensable remuneration claims through the granting of the free right of use, as will be shown later in this section. The waiver clause of the CCPL therefore has – at least under German law – less of an independent regulatory content than it does, together with the free right of use, effect the far-reaching freedom from remuneration of open content.
170 Directly or through a collecting society. The clause exempts the licensee from remuneration claims both in relation to the licensor directly and in relation to collecting societies.
171 Firstly, remuneration agreed directly between the licensor and the licensee – for example, from a previously individually concluded licence agreement – can be waived. However, as the waiver only applies ex nunc, the CC licence does not intend to settle outstanding monetary claims for uses based on a previous licence agreement . Furthermore , an individual agreement between the licensor and a licensee supplementing the CC licence regarding the payment of remuneration may take precedence, provided that the agreement indicates this intention (for such agreements, see other conditions under Section 7.b). Under no circumstances does the CCPL's waiver of remuneration affect agreed remuneration for the creation of a work or other cases in which the subject matter of the service is not or not only the granting of rights of use.
172 Secondly , the waiver clause covers claims asserted by collecting societies. Where collecting societies are only granted simple rights, authors are also free to dispose of remuneration claims. This is the case, for example, in the USA, where antitrust law does not allow exclusive rights to be granted in the collective management of rights.
173 The situation is different in Germany, for example, where collecting societies can have exclusive rights transferred to them for the purpose of management.
174 The statutory remuneration claims exercised by collecting societies cannot be waived. Statutory remuneration claims are compensation for statutory permissions (limitations); since statutory remuneration claims are not disposable under Section 63a UrhG, the waiver provision of the CCPL is irrelevant in this context under German law.
175 However, remuneration exemption can also be achieved for some acts that fall within the scope of statutory permissions via the free right of use granted with the licence . This is the case wherever the legislator has left the author, despite the statutory permission has left the author with options for making more favourable agreements for the beneficiary of the limitation. From this point of view, the statutory permissions subject to remuneration must be examined in more detail in each case:
People with disabilities (Section 45a (2))
use for persons with visual/reading impairments by authorised bodies (Section 45c)
Religious use (Section 46)
School radio broadcasts (Section 47 (2))
Newspaper articles and radio commentaries (Section 49(2))
Public reproduction (Section 52)
Reproductions for private use pursuant to § 53 (§§ 54, 54a)
the limitations of the knowledge society pursuant to Sections 60a et seq. (Section 60 h).
176 Prerequisite for the displacement of statutory remuneration claims by a free right of use. Whether a free right of use takes precedence over a statutory remuneration claim depends on whether the author or holder of the right of use still has discretionary power with regard to the right despite the statutory permission. This differentiation follows the printer/plotter case law (Cases C-457/11 to C-460/11)
177 Against the background of this differentiation, the following case groups can be formed:
It is not the acts of use themselves that are remunerated, but preparatory or accompanying acts (consent not possible). In the context of reproduction acts that are permissible under the rules on private copying pursuant to Section 53 (1) UrhG, the right of reproduction is excluded in this respect according to ECJ case law. A rightholder can no longer give consent.
The law leaves room for the contractual granting of rights of use, which is more advantageous for users (consent possible). Within the framework of the usage licences introduced by the UrhWissG (Sections 60a et seq. UrhG), rights holders can grant usage licences that go beyond the statutory provisions, i.e. they can agree on usage licences that are advantageous for users .
If a contractual licence within the scope of a limitation provides for remuneration that is more favourable to users than the statutory remuneration claim (in this case: no remuneration at all), this shall also take precedence. The reason for this is § 60 g UrhG, which regulates the contractual validity of barrier provisions in the knowledge society. The provision states that rights holders cannot invoke contractual provisions that fall short of the permissions granted under §§ 60a ff. UrhG. However, a rights holder remains free to make arrangements in favour of users. This is also in line with the legislative intent of the legislator. The explanatory memorandum to the draft bill of the UrhWissG states on page 10:
"The statutory permissions (copyright limitations) should, in the interests of education and science, grant legally guaranteed basic access to copyright-protected content. They thus supplement the use on a licence basis, for example of online offerings or through the purchase of printed books. Against this background, licensing in the area of limitations is also not invalid in principle, but may not restrict the uses permitted by law (Section 60 g (1) UrhG)."
178 In the case of Section 49(1) UrhG, it can also be assumed that this statutory permission does not completely exclude the power of disposal of the author or rights holder. This is because the use of newspaper articles and radio commentaries is legally permitted within the scope of Section 49(1) sentence 1 UrhG, but may be subject to a reservation of rights. If a reservation of rights is provided for by law as an option for rights holders, the exclusive right is merely restricted, not excluded.
179 In the cases mentioned in section 2, the user therefore has a choice: on the one hand, they can invoke the statutory permission under the applicable conditions. These are, in particular, the obligation to pay remuneration and the prohibition of modification (Section 62 UrhG), the indication of the source (Section 62 UrhG) and the obligation to pay remuneration that then applies; or, on the other hand, they can invoke the CCPL. In this case, they can use the work free of charge and must comply with the licence conditions of the CCPL, in particular the BY attribution requirement.
180 This result is also logical from the licensor's point of view: Anyone who allows free use with CC licensing, as long as the licence conditions are complied with, is bound by this licence offer. Otherwise, one would find oneself in an absurd situation: use exceeding the legal permission would not have to be remunerated, but use falling solely within the scope of the remuneration-liable restriction would have to be remunerated: a user who copies 15 per cent of a work for scientific purposes in accordance with Section 60c (1) UrhG triggers a remuneration obligation; if the scope of the copy exceeds the limit, i.e. if the user copies 16 per cent, for example, and thus concludes the CC licence agreement, the use would remain completely free of charge.
181 The result is that for CC-licensed materials, the statutory compensation obligation continues to apply in the context of private copying, or generally for all statutory usage permissions that exclude exclusive rights and thus leave no room for a licence agreement. In contrast, Sections 60a et seq. of the German Copyright Act (UrhG) allow for CC licensing, as this does not restrict the legally permitted uses.
182 Exercise of rights "by you". The waiver of remuneration is directed at "you", i.e. the CC licensees who use the materials in a manner that gives rise to the licence agreement or who make use of the licensed rights (see CCPL section 1.k). This means that the waiver of remuneration does not initially extend to third parties. Third parties come into play where CC licensees and remuneration debtors are not the same persons: Anyone who installs copying equipment or sells blank media and is therefore a remuneration debtor in accordance with Sections 54 ff. of the German Copyright Act (UrhG) is usually not the same person who makes a private copy. This means that private copying remuneration cannot be waived, nor is it possible – as explained above – to replace the remuneration with a licence agreement provision. The CCPL therefore does not attempt to regulate a remuneration waiver-vis third parties.
C. Restriction of the waiver (p. 2)
183 Page 2 takes into account mandatory statutory remuneration claims under copyright law and the system of rights management. Despite CC licensing, a claim for remuneration based on use under Section 53(1) of the German Copyright Act (UrhG) can therefore also be asserted by the licensor against the collecting society.
D. Version history
184 Prior to the introduction of licence version 4.0 in 2014, i.e. before the switch to the international approach of the CCPL, version 3.0 in particular still contained provisions in its respective ports that were adapted to the respective jurisdictions and systems of collecting societies. For example, section 3.e.i of the German port
E. Position of CC
185 The CC organisation is critical of indispensable statutory remuneration claims if they jeopardise the open content approach. CC expressed its opposition to corresponding legislative proposals, particularly those of the EU, in 2017.
Creative Commons License
Open Access Kommentar, Commentary on Section 2.b.3. Remuneration waiver is licensed under a Creative Commons Attribution 4.0 International License.
