According to information from lawyer Dr. jur. Urs Verweyen, who advises the VERE association at the law firm Vy – Brix Lange Verweyen Rechtsanwälte, the German Central Organisation for Private Copying Rights (ZPÜ) has recently written to numerous IT companies and is now also demanding information and a device levy for game consoles (see https://www.vy-anwalt.de/news/zpue-geraeteabgabe-fuer-spielekonsolen-was-sie-jetzt-tun-muessen). In these letters, the ZPÜ demands the following by 31 July 2025:
- Information about all stationary and handheld consoles that the companies have placed on the market in Germany between 2022 and 2024,
- Threat of a penalty surcharge (double remuneration rate, Section 54f (3) UrhG) for late disclosure, even though no tariff has yet been established for storage consoles.
- It announces that it will assert a remuneration for game consoles (so-called device levies) after establishing a tariff for game consoles.
- It threatens to bring its alleged claims for 2022 before the arbitration board in accordance with the VGG and, if necessary, before the Munich Higher Regional Court in order to avoid the statute of limitations.
Important: The ZPÜ letter includes a draft agreement on the extension of the limitation period (VVV), which the law firm Vy views critically:
According to Vy, the ZPÜ – allegedly on the basis of an empirical study conducted by GfK on behalf of the ZPÜ – assumes that game consoles are used for reproductions subject to remuneration within the meaning of Section 53 (1) or (2) UrhG or Sections 60a to 60f UrhG, in particular for the reproduction of sequences of the gameplay of video games played on the consoles.
Dr Verweyen considers game consoles to be exempt from the levy for several reasons and therefore considers the ZPÜ's claims to be unjustified:
- There are doubts as to whether the ZPÜ is even responsible for game consoles. In particular, the companies organised in the game – Verband der deutschen Games-Branche e.V. (Association of the German Games Industry) do not contribute their rights to the ZPÜ, but have founded their own collecting society, VHG.
- In Dr. Verweyen's opinion, the possibility of “recording gameplay” (which appears to be the sole basis for the ZPÜ's claim) does not trigger a remuneration obligation within the meaning of Sections 54 et seq. of the German Copyright Act (UrhG). The law aims to provide remuneration for private copies of copyright-protected works (such as music or films) – recording one's own gameplay does not fall under this category in Dr. Verweyen's view.
- Furthermore, the ability to record screenshots and game sequences is a feature of the respective game that is covered by the direct licence payment (or subscription fee, if applicable) for the respective game. There is therefore no entitlement to further remuneration, as users have already paid remuneration for this directly, see, for example, BGH, judgment of 19 November 2015, ref. I ZR 151/13, GRUR 2016, 792 – Gesamtvertrag Unterhaltungselektronik, para. 48, para. 53.
- Game consoles also generally have strong copy protection that makes it impossible to record other content (closed system).
- Accordingly, Austro Mechana in Austria has already dropped its demand for a storage media levy on game consoles from last year (see https://www.vy-anwalt.de/news/starke-erhoehung-der-speichermedienverguetung-in-oesterreich).
Background:
- Weeks ago, the ZPÜ attempted to negotiate a comprehensive agreement (tariff) for game consoles with IT associations (including VERE e.V.). However, according to information provided by Dr. Verweyen, these associations refuse to negotiate because they do not consider game consoles to be subject to remuneration.
- Undeterred, the ZPÜ has already taken the next step and initiated proceedings before the arbitration board at the DPMA (German Patent and Trademark Office) to have an empirical study conducted on the use of consoles (Section 93 VGG). Whether this study will take place is still open; a decision by the arbitration board is still pending.
Are you affected and a member of VERE e.V. (become a VERE member now)? Then please contact Dr. Verweyen directly, quoting your VERE membership number:
Dr. jur. Urs Verweyen, lawyer, partner
Vy – Brix Lange Verweyen Rechtsanwälte PartG mbB
Phone: +49/30/51565998-0
Email: verweyen@vy-anwalt.de
https://www.vy-anwalt.de
