The statutory provision on which this ruling of June 30, 2011 is based as part of the German Copyright Act since 1965. However, for decades this well recognized intellectual property right of broadcasters has fallen on deaf ears at the German Association of Hotels and Restaurants (DEHOGA). In order to disburden its hotel members from broadcaster compensation claims, the Federal Hotel Association had vehemently denied the claim for years. While numerous of its members went along, some well-known hotel operators decided to comply with the law for good reasons.
They now see themselves reconfirmed. At the end of arbitral proceedings commenced on July 14, 2006 at the Patent Office in Munich, and following the complaint brought by Turner Broadcasting before the Munich Higher Regional Court on December 12, 2009, Turner Broadcasting has now fully prevailed in respect of the legal grounds. Represented by its long-time legal counsel Heuking Kühn Lüer Wojtek (partners Rudolf du Mesnil, Frankfurt, and Michael Schmittmann, Düsseldorf), Turner, by means of this legally binding Higher Regional Court judgment of June 30, 2011, has now succeeded in enforcing a license agreement pursuant to Section 87 German Copyright Act.
Additional background information:
Over the course of the litigation, almost all grounds of the claims had been in dispute: Not only the plaintiff's standing to sue (legal property as broadcaster, claim ownership, not assigned to a collecting society), but also the application of the broadcaster’s property right regarding the internal hotel cable distribution process at issue - namely the simultaneous, unaltered provision, by in-house cable distribution system, of the TV signal received via satellite reception, to the hotel’s guest rooms. The hotel operator’s defense, not to be obliged to distribute the program to the guest rooms ("no obligation to contract"), was unsuccessful, given its actual use of the program.
In the future, reasonable license conditions, thus in particular the license fee for the program CNN International in hotel operations, will either be individually agreed upon with the hotel operators or established by way of classification by a collecting society. In the case at issue, regarding a Düsseldorf airport hotel, the court considered a payment of EUR 0.19 per furnished hotel room per year a reasonable fee under certain contractual conditions. "It will depend on numerous market factors where the level of compensation will be in the future and in different contractual relationships," observed Rudolf du Mesnil, partner at Heuking Kühn Lüer Wojtek in Frankfurt.
Counsel to Turner:
Heuking Kühn Lüer Wojtek:
Rudolf du Mesnil (Copyright, Licensing and Distribution Law, Frankfurt); Michael Schmittmann (Broadcasting, Satellite and Cable Law, Copyright and Telecommunications Law, Düsseldorf)