Unreasonable Royalties for Translator

Pursuant to §32 UrhG the copyright holder is entitled to receive reasonable royalties when permitting exploitation of his copyright. But can it be that the author has the right to demand participation on the sales? The BGH gave some new clarification in its judgment of October 7, 2009 (re I ZR 38/07 - Talking to Addison).

Merinda is a professional translator in Germany. In accordance to her assignment, she translated two novels from English to German in November 2001. She received the agreed remuneration of € 15 per page of the translated text for all rights of exploitation from the publishing house without any restrictions in time or location. She considered this to be unreasonable within the meaning of §32 I 3 UrhG. This provision entitles the copyright holder to demand reasonable royalties when the agreed amount is substandard. However, this provision came into legal force in July 2002, is it applicable to older cases?

Yes, the court said in its judgment that this provision to all situation - previous, present, and future. This remains true even though the first agreed payment was usual in this industry. Nevertheless, this agreement is unreasonable because the justified interest of Mirinda has not been considered to cover also all economical use of her translations until 70 years after her death (§64 UrhG). Next to the guaranteed royalty (price per page), she is also entitled to a percentage of the sales. It starts with a sold circulation of 5,000 pieces and for hardcover copies 0.8% and for pocketbooks 0.4% of the net sales price. Beyond that threshold, so the Federal Court of Justice, the translator will be entitled to half of the net profit the publishing house obtains from granting third persons any licenses. Understand as "net profit" what remains after deducting royalties to other copyright holders and relates to the exploitation of the translation.

Remark:

Though this article is only talking about "translation", the idea behind the ruling is applicable to pieces of works as laid out in §2 UrhG such as: creations from authors, performers, producers and broadcasters.