Stephan CarduckDie Rechtsstellung des Unterlizenznehmers nach dem Fortfall der Hauptlizenz

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When a license agreement dissolves, it is important to know what happens to a sub-license, not only from a legal but also from an economic point of view. Big investments in copyrighted material only make sense when the licensee can be certain of owning the sub-license for the duration of the agreement. If, however, potential investors have to fear losing their rights following the dissolution of the main license, they will stop investing their money in Germany. Considering this, the recent decisions of the Federal Court of Justice in Germany, Reifen Progressiv, M2Trade, and TakeFive, are of particular relevance for Germany as a location for economic and scientific advancement.

In these cases the Federal Court of Justice decided that the interests of the sub-licensee to keep their usage rights generally outweigh the main licensor’s interests to regain all rights. According to those decisions, the sub-licensee’s trust in their continued rights requires greater protection because the loss of those rights before the end of the license agreement would cause significant economic losses.

These decisions strengthened the sub-licensee’s legal position. They are no longer threatened by the potential of premature loss of their rights, and thus of their investment.

In some parts, the judgments were interpreted to mean that the Federal Court of Justice assumes the materiality of a non-exclusive license. To examine this assumption, the judgments were analyzed to decide whether the Federal Court’s statements really allow conclusions to be drawn about the legal nature of a non-exclusive license. Particularly the remarks on the continuing effect of non-exclusive exploitation rights, the handling of licenses in case of bankruptcy, and the relation of commitment and order within the framework of a license agreement were analyzed.

With the continuance of the sub-license, the need for a contractual arrangement between the main licensor and the sub-licensee arises. The Federal Court’s solution to grant the main licensor claims to license payments misjudges the complexity of a license agreement. That is why a solution using tenancy law has been suggested. This study points out the problems of that suggested solution which is notably at odds with the freedom of contract. Finally, a new approach is given for the solution of the constellation between the main licensor and the sub-licensee.