Die unbekannten Nutzungsarten im Wandel der Zeit Ein Beitrag zur Entwicklung der unbekannten Nutzungsarten in Gesetzgebung und Rechtsprechung

The so called »unbekannte Nutzungsarten« have a long tradition in German case law and legislation. The fundamental legal issue, related to this legal term, is whether the author may assign usage rights of yet unknown types of use to his copyright-protected works. Originally, the legal term was introduced into German Copyright Law by Section 31 paragraph 4 of the German Copyright Act of 1965 (CA 1965). According to this provision both the assignment of rights of unknown types of use and a correspondent obligation were declared invalid by law. However, the analysis of the case law of the German Federal Court of Justice (Bundesgerichtshof) and the former Imperial Court (Reichsgericht), reveals that the legal idea which is related to the aforementioned provision had already been outlined by the Reichsgericht. The first time the Reichsgericht was confronted with the legal problem of »unbekannte Nutzungsarten« was in 1927. In its Verfilmung case, the Reichsgericht decided that a contractual agreement on »all future rights« could not include the right of film adaptation which was unknown at the time of the conclusion of the contract. The judgement was based on the idea that in any case of doubt rights will remain with the author. Only two years later, in 1929, the Reichsgericht decided that the term »all unrestricted copyrights« which was used in an agreement did not include the assignment of all unpredictable future possibilities of using a work as this would completely change the character of the assignment. Moreover, the fee negotiated between the parties would not correspond with such extensive assignment of rights. In this case, the Reichsgericht identified moral rights as a core of Copyright Law to which accrue unpredictable future ways of use. In the Hampelmann case of 1933 the Reichsgericht stated that a contractually agreed revenue share protects the author from giving away his copyright without participation in revenues from the exploitation of the work. In the following the jurisdiction of the Reichsgericht was continued and confirmed by the Bundesgerichtshof. Thus, from a retrospective point of view the former Section 31 paragraph 4 CA 1965 turns out to be the codification of persistent case law of the German Reichsgericht and Bundesgerichtshof. On the occasion of the last revision of the German Copyright Act in 2008 (CA) the former Section 31 paragraph 4 CA was abolished and replaced by Section 31a CA and Section 32c CA. Now the assignment of usage rights concerning unknown types of use is legally allowed. However, the author has a right of revocation. Moreover, if his work is used in a new manner the author has an indispensable right to a reasonable remuneration. Considering the new legislation in the light of the former case law, the legislation still seems to be in line with the former case law's main ideas. As far as the Courts have put forward that the author shall participate in all revenues which are generated by the exploitation of a work, Section 32c UrhG reflects this main idea. In addition, the right of revocation might be used to negotiate a better remuneration. It can also be considered as an expression of moral rights insofar as it might be used to enforce matters that are related to issues of personality rights. However, there are reasonable doubts that the new legislation is also in accordance with the so called »Zweckübertragungstheorie«. According to this main idea of German Copyright Law, the author only assigns as many rights as necessary to reach the agreed purpose of an agreement. The new Section 31a UrhG might be interpreted as a legal assumption of this principle. Finally, the future will show whether these new provisions will indeed foster the making available of old works to the public that could not be exploited yet since the author has not agreed to the exploitation of his work or could not be found, as it was the main objective of the revision. In dem vorliegenden Beitrag wird