Proactive duty to provide information pursuant to Section 32d of the German Copyright Act

If your company resides in Germany and uses media that comes from photographers, designers, filmmakers, etc. with whom you have a direct contractual relationship, then you should already make a note of June 7, 2023. Why?

A recast of section 32d of the German Copyright Act (Urhebergesetz) stipulates that clients of authors must provide them with information about the extent of use of their works at least once a year. For old contracts, this must be done for the first time on the specified date.

Background: Previously, authors could request this information on demand. Now it becomes a proactive duty to provide information.

Contractors who fail to comply with this obligation face legal action and reputational damage.

Everything you need to know and do now to be protected from negative legal consequences, we have summarized for you in this blog article.

Which works are affected by the regulation?

Two conditions must be met:

1. First of all, a work must have the required threshold of originality, i.e. a certain individuality or style must be recognizable.
2. The use of the work must be regulated in a paid contract with the author.

There are no restrictions on the medial form. The regulation applies to all media, so for example:

• • Photos
  • Graphics and illustrations
  • Videos and footage
  • Music and audio files
  • Designs
  • Texts

Which works are excluded from the regulation?

There is no legal duty to provide information to third-party providers. So for media that do not come directly from the creator but are marketed via stock photo providers (iStock, Adobe Stock, etc.), for example, everything remains the same for you.

To whom does the proactive disclosure obligation apply?

The duty to provide information applies to all contractual partners of authors who have had rights of use granted to them in return for payment. Contractual partners can be companies, tradesmen and freelancers from all industries.

Strictly speaking, authors cannot release their contractual partners from the obligation to provide information, as this is required by law.

Exceptions are made only in cases of subordination or disproportionality, i.e., when an author has made only a small contribution of his or her own or when the effort required to provide information is disproportionate to the revenue generated.

What must information be provided about?

Contractual partners of authors must proactively inform them about the extent of the use of the work and the income derived from it. Relevant here are, for example, the period of use, the medium of use (website, brochure, annual report, mailing, blog post, etc.), the circulation or reach of the use, as well as information on revenues that have resulted from the use of the works.

What happens if I fail to comply with the obligation to provide information?

If you do not comply with the obligation to provide information, copyright associations such as Freelens or the BVPA may claim injunctive relief and sue for the information in court. You may therefore incur court costs and administrative fines. And for your personal reputation or that of your company, an injunction would certainly also be detrimental.

What should I do now as an entrepreneur?

First of all, you should take an inventory. Check to what extent your company is affected. Are there any media at all that come from direct contracts with authors, or is the proportion perhaps only very small?

You should also check whether you can invoke an exception (subordination or disproportionality, see above).

If you have determined that your company works to a significant extent with media that are subject to the disclosure obligation, then you should get to work promptly. Finally, it is important to establish a system that enables complete documentation (keyword traceability). For this purpose, all relevant plants must be recorded and provided with the necessary information.

Of course, this represents a high bureaucratic hurdle that is difficult to overcome without technical aids. Fortunately, you don’t have to start from scratch when it comes to software. With a so-called DAM system the relevant data can be efficiently maintained and exported. DAM stands for Digital Asset Management. This is the technical term for the professional management of digital images and other media. Many companies have been using DAM solutions for years. If this is not yet the case for you, now is the right time to make up for it.

Of course, the introduction of a DAM system involves additional costs, but the time saved is so high that the costs are amortized within a short time.

Digital Asset Management for Business

The teamnext | Media Hub is a cloud-based DAM software for enterprises. With the Media Hub, the usage notes required for the disclosure obligation can not only be created efficiently, but also exported quickly and easily via a CSV interface. A few mouse clicks are all it takes to download all legally relevant data, filter it and send it to the respective author. And because our solution is intelligent, you are automatically reminded before the next annual deadline which authors need to be informed and when.

By the way: teamnext places a particularly high value on the data protection-compliant storage of all media files. We do not use any third-party tools and process your data exclusively on servers in European data centers: highly secured and GDPR-compliant.

Test the teamnext | Media Hub free of charge and without obligation

If we’ve made you curious and you just want to try out the various features of our media management software, you can get started right away with a free 14-day trial. Additionally, you are welcome to book an appointment for an online product demo with one of our experts. Simply use our contact form for this purpose.