Revocation of translator rights: SKW Schwarz successful in Federal Court of Justice test case on behalf of Carl Hanser Verlag
SKW Schwarz Rechtsanwälte won a test case in the Federal Court of Justice (BGH) for the Carl Hanser Verlag involving the revocation of translator rights. The judges in Karlsruhe granted the publishing house’s renewed application for leave to appeal and rejected the defendant translator’s counter appeal.
In the case ruled upon, a translator had availed himself of his right of withdrawal under section 17 of the Publishing Act and accordingly revoked his translator rights to several works on the grounds that the publishing house had not exercised them in a total of three cases. In all the cases only the licensed paperback edition of the translation was still on the market; in some cases reasonably priced special editions of the hardcover or later editions of the same were also available. In at least one case, the hardcover was out of print.
The publishing house had taken legal action and had wanted the court to establish that the translation rights had not reverted to the translator simply through withdrawal or revocation.
The Carl Hanser Verlag had initially won in the District Court of Munich, but was then partially unsuccessful in the appeal. As the appeal was not admitted, both parties lodged a renewed application for leave to appeal in the Federal Court of Justice.
In the opinion of the attorneys at law firm SKW Schwarz, the ruling is significant for publishing rights for various reasons, “On the one hand, the Federal Court of Justice ruled in favor of the publishing houses with regard to the copyright issue of whether at least in older contracts express mention must be made of the granting of rights of use for subsequent editions or whether implied granting is sufficient,” said Dr. Dorothee Altenburg, a partner at SKW µSchwarz in Munich. “In practice this means that a lack of express regulation at least does no harm if additional circumstances arising from the contract or, if applicable, the behavior of the parties, e. g. the acceptance of subsequent editions without objection, indicate implied granting of corresponding rights of use.”
Furthermore, the ruling has effects on the conditions of the translator’s right of withdrawal under section 17 of the Publishing Act with regard to the issue of whether the new edition of the work mentioned therein can also be printed in a form other than hardcover edition, in particular as a paperback edition, and whether such a work must be published by the publishing house itself or by a licensee. According to the remarks of the Federal Court of Justice, the publishing house meets its obligations if a paperback licensed edition is available. “In future cases, care must therefore be taken that at least one printed form of the work is available on the market in order to rule out the translator’s right of withdrawal,” Dorothee Altenburg explains.
In the course of the oral proceedings, the Federal Court of Justice finally indicated that its ruling would not only be applicable to translators, but also to authors in general. “The ruling should therefore be of general significance for the interpretation of section 17 of the Publishing Act and the usual sequence of use of the various book forms,” said Dorothee Altenburg. Accordingly, the author has no withdrawal option if only a single book form is no longer available on the market.