Stanislaus Jaworski has published an article on the contract adjustment mechanism in Sec. 32 (1) 3 German Copyright Act 8 (Berliner Anwaltsblatt, 5/2020, p. 181 et seq.). According to this rule, authors can demand an adjustment of the agreed remuneration to an “equitable” remuneration for a grant of rights irrespective of whether the exploitation of the work yielded any profits at all. This is even true when the agreed remuneration was initially offered by the author itself. In some business sectors it is almost impossible to determine the “equitable remuneration” according to the law before a court has. In practice, claims based on Sec. 32 (1) 3 German Copyright Act are regularly rejected by courts (our experience). This does not help authors and burdens rightsholders with litigation costs. It remains to be seen whether this highly problematic rule will be copied by other EU member states in transposition of Art. 18 DSM Directive.
